TREATISE 


ON    THE 


LAW  OF  SLANDER  AND  LIBEL, 


AND     INCIDENTALLY    OF 


MALICIOUS  PROSECUTIONS. 


Nescit  vox  missa  reverti. 


By  THOMAS  STARKIE,  Esq. 

OF    LINCOLN S    INN,    BARRISTER    AT    LAW. 


FROM    THE    SECOND    ENGLISH    EDITION    OF  1830. 

WITH    NOTES    AND    REFERENCES    TO    AMERICAN    CASES    AND    TO    ENGLISH 
DECISIONS    SINCE     1830. 

By  JOHN   L.   WENDELL, 

COUNSELLOR    AT   LAW. 


VOL,.  I. 


HARTFORD,  CONN. 
PUBLISHED    BY   JOHN    L.    WENDELL, 

1858. 


Entered  according  to  Act  of  Congress,  in  the  year  1843, 

By  JOHN  L.  WENDELL, 

in  the  Clerk's  Office  of  the  District  Court  of  the  Northern  District  of  New  York. 


T 


WEST   BKOOKFIELD,    MASS. 
PBINTED    BY     THOMAS     MOBEY. 


a. 
h 
0 


TABLE  OF  CASES 


CITED  BY  THE  AUTHOR. 


Abergavenny  (Ld)  v.  Cartwright  i  186 

's  (Ld)  Case,  i  186 

Adams  v.  Meodew  i  391 

Aitken  v.  Head  and  Fleming  P.  D.  33 

Alverton  v.  Tregono,  i  450 

Anson  v.  Stuart,         i.  112,  159,  168,  234 

Argyle  v.  Hunt,                           ii  124,  126 

Archbishop  of  Tuam  v.  Robeson,  i  162 

Armstrong  v.  Jordon,  ii     11 

Arne  v.  Johnson,  i  140 

Ashby  v.  White,  i  245 

Ashley  v.  Harrison,  ii  64,  65 

(Sir  R.)  i  250 

's  (Sir  Anthony)  case  ii     73 

Astley  v.  Young,  i  246,  472 

Att'y-General  v.  Annett,  ii  140 

v.  Eaton,                        ii  142,  150 

v.  Hive,  ii  139 

v.  Le  Merchant,  ii  28,  49 

-  v.  White,  ii  201 


v.  Wilkes,      ii  111,  158,  174,  267 

Austen  (Sir  J.)  v.  Culpepper,  (Col.) 

i  156,173 
Avarillo  v.  Rogers,  i  369 


B. 

Baal  v.  Baggerley, 
Bagnall  v.  Underwood, 
Baker  v.  Peirce, 

's  Case, 

Baldwin  v.  Elphinstone,  i  210, 

v.  Flower, 

Banister  v.  Banister, 
Barbara's  Case, 
Barnabas  v.  Traunter, 
Barnes  v.  Bruddell, 

v.  Prudling, 

Barren  v.  Gibson, 
Barrons  v.  Ball, 
Barrow  v.  Llewellin, 
Baxter's  Case, 
Beauchamp  (Ld.)  v.  Croft, 
Beaumond  v.  Hastings, 


i    50 

ii  310 
i  52,  91 

ii  368 
358.  ii  16 
i  199 
i  146 
i  422,  424 
i  26 
i  298 

ii  62 
i  203 
i  395 

ii  231 
i  419 

i  404 


Beavor  v.  Hides, 
Bell  v.  Byrne, 

v.  Stone, 

v.  Wardell, 

Bellingham  v.  Minors, 
Bendisli  v.  Lindsey, 
Berryman  v.  Wise, 
Bill  v.  Neal, 
Bishop's  (seven)  Case, 


Blackburn  v.  Blackburn, 
Bliss  v.  Stafford, 
Blisset  v.  Johnson, 
Blizard  v.  Kelly, 
Bolton  (Sir  Wm)  v.  Dean, 
Bonham's  (Dr.)  Case, 
Boston  v.  Tatharn, 
Boulton  v.  Clapham, 
Bourke  v.  Warren, 
Bradley  v.  Methwyn, 
Bridge's  Case, 
Brigg's  Case, 
Britbridge's  Case, 
Uromage  v.  Prosser, 


i  74  ii  111 

i  373,  378,  482 

i  161,  108 

i  281 

i  475 

i  35, 435 

ii  2,  10,  310 

i  121,  122 

ii  20,  37,  38, 

39,  208,  338 

ii  323 

i  145 

i  370 

i  449 

i  173 

ii  97,  270 

i  19,  20 

i  250 

ii  325 

i  157 

i    48 

i  108 

i  464 

i  373,  220  ii     85, 


105 

Brookbard  v.  Wood  ley,  ii    20 

Brooke  v.  Montague,  (Sir  Henry) 

i  216,  283,  286 


Brookes  v.  Warwick, 
Brown  v.  Croome, 


v.  Murray, 
v.  St.  John, 


283 

ii  74.  78 

i  214,  327 

ii     86 

ii    67 

i     B4 

i  440 

i  401 

ii     24 

-       i  380 


Browning  v.  Newman, 
Browulow's  (Dr.)  Case, 
Buchanan's  Case, 
Bkinghi    m  v.  Murray, 
Buckingham's  (Duke  of  )  Case, 

i  182,  184,  186 
Buckley  v.  Wood,  i  248,  252,  254, 

266 

's  Case,  i  253 

ii  205,  293 
i  53 
i  374 


Burdett  (Bart.)  v.  Abbott, 
Burgess  v.  Boucher, 
Burgis's  Case, 


667805 


TABLE  OF  CASES. 


Burley  v.  Bethune, 

ii    77 

Burnet  v.  Cod  man, * 

i  887 

v.  Wells, 

i  413  ii  109 

Burton's  Case, 

ii  368 

Busby  v.  Watson, 

i  446 

Bushel's  Case, 

ii  335 

Bustwick's  Case, 

ii  368 

Butt  v.  Conant, 

ii  294 

Button  v    Hay  ward, 

i 16,  54, 393 

Byrne  v.  Moore, 

i  448  ii    76 

Hunt, 


C. 

Candell  v.  Loudon, 
Cardinal's  Case, 
Carpenter  v.  Tarrant, 
Carr  (Sir  John)  v.  Hood, 

's  Case, 

Carrol  v.  Bird, 
Carslake  v.  Mapledoram, 
Cartwright  v.  Wright, 
Cary  v.  Pitt, 
Ceely  v.  Uoskins, 
Chalmer's  Case, 
Chambers  v.  Jennings, 

v.  Robinson, 

Chapman  v.  Lamphire, 
Charnel's  Case, 
Child  v.  Affleck, 
Christie  v.  Cowell, 

v.  Powell, 

Churchill  (Lord) 
Clark  v.  Price, 
Clarke  v.  Periam 
Clayton  v.  Nelson, 
Cleaver  v.  Sarrande, 
Clement  v.  Chivis, 
Clendon's  Case, 
Clerk  v.  James, 
Clissold  v.  Clissold, 
Clutterbuck  v.  Chaffers, 
Cobb  v.  Carr, 
Cockaine's  (Lady)  Case, 
Cohen  v   Morgan, 
Coleman  v.  Goodwin, 
Collis  v.  Malin, 
Collis  v.  Loder, 
Constantine  v.  Barnes, 
Cook  v.  Bachelor, 

v.  Field, 

Cooke  v.  Cox. 

— v.  Hughes 

v.  Smith, 


i  19 


114, 

i 

ii  17,  19 

i 

P.  D. 

ii 

ii  55 


i  236, 


Cooper  v.  Hawkswell, 

v.  Smith, 

Cornwall  v,  Ptichardson, 
Cox  v.  Humphreys, 
Coxeter  v.  Parsons, 
Craft  v.   Broite, 
Craig  v.  Hunter, 
Crawford  v.  Middleton, 


279 

33 

20 

305 

28 

293 

115 

379 

,27 

49 

45 

127 

,78 

140 

77 

301 

85 


i  410 

ii  119 
ii  62 
ii  67 
i  323,  32 
i  162 
ii  138 
i  346 
i  343 
,  17 
80 
106 
72 
449 
404 
102 
446 
347 
101 
368 
381 
85 
380 
76 
394 
60 
38 
119 
427 
78 
331 
103 


Cromwell  (Lord)  v.  Denny, 
's  (Lord)  Case, 


ii  14, 

ii 

i  33,  105, 

i  449  ii 


444,  ii 
i  367, 


i   346 
P.  D. 


i  462 

i  184 

235,461 

Croop  v.  Tilney,  i  157,  167,  173 

Crosby's  Case,  ii     24 

Cuddington  v.  Wilkins,         i  19,  237,  492 
Curry  v.  Walter,  i  259,  263,  265,  269, 

468,471,  472,  ii  83,  86 
Cutler  v.  Dixon,  i  249 


1). 


Dacosta  v.  Pym, 
Davis  v.  Gardiner 
Davis  v.  Lewis 

y.  Noak, 

's  Case, 


i 

i  139, 

i  66, 

i  195,  198, 
200 


Dawes  v.  Bolton, 
Dean's  Case, 

De  Crespigny  v.  Wellesley, 
Delacroix  v.  Thevenot, 
Delamore  v.  Heskins, 
De  la  Motte's  Case, 
Delany  v.  Jones, 
Delanny  v.  Mitchell, 
Dibdin  v.  Bostock, 

y.  Swan  and  Bostock, 


ii  14 


i  69,  321. 
ii 


Crofts  (Sir  Harbert)  y.  Brown, 

i  14,  102,  104, 


IOC 


Dobsou  v.  Thorstone, 

Dobb  v.  Robinson, 

Doncaster  v.  Hewson,  i 

Dorchester's  (Marquis  of)  Case 

il82,  184,  188,342, 
Dorrell  v.  Grove,  i 

Drake  v.  Corderoy,  i 

's  (Dr.)  Case,  i 

Driver  y.  Driver, 
l)u  Bost  v.  Beresford 
Duncan  v.  Thwaites, 


Dunman  y.  Bigg, 
Dunne  v.  Anderson, 


Earner  v.  Merle,  • 
East  y.  Chapman, 
Eaton  v.  Allen, 
Eddowes  v.  Hopkins, 
Edmonson  y.  Stevenson, 

Edwards  v.  Lell, 


i  172  ii 

226,  267, 

274, 


19 

195 
231 
448 
199, 
202 
38 
270 
329 

,  n 

386 
28 
327 
67 
314 
142 
141 
403 
373 

344 
73 

415 
362 
124 
321 
269, 
486 
324 
314 


ii    91 
ii    98 

i  22,  23,  34,  35 

ii  111 

i  223,  294, 

299 

i  498,  ii  102 


(Dr.)  v.  Wooton,  (Dr.) 
i 

's  Case, 

Elbrow  v.  Allen, 

Ellershaw  v.  Robinson  and  Ux 

England  v.  Bourke, 

Entick  v.  Carrington, 
Evans  y.  Brown, 


153,  ii  230 
i  12,  210 
i  193 
ii  90 
i  235 
ii  102 
ii  29,299 
ii  120 


TABLE  OF  CASES. 


Fairman  v.  Ives,  i  230,287,  816 

Faulkland  (Ld.)  v.  Phipps,        i  180,  188 
Ferrets  (Ld.)  v.  Shirley,      ii  17,  18,    19 

Fife  v.  Fife,  P.  D.  -14,     45 

Figgins  v.  Cogswell,  i  418 

Finnerty  v.  Tipper,  ii  54,  100 

Fleetwood  (Sir  Miles)  v.  Curl,  ii  111,  419 

v.   Curley,  ii     ;V> 

Fletcher  v.  Braddyll,  ii 

v.  Webb,  ii 

Flint  v.  Pike,        i  2G1 ,  202,  272,  485. 


Harman  v.  Delany,  i  155,  68,  232 

il  irper  (Sir  J.)  v.  Beaumond,  i   131 

Q  v.  King,  i  CO.     67 

v  Stratton,  i    76 

■  v.  Thornborongh,  i  ".}.  71.  140,  389 

Hart's  I  i  882 

Hartley  v.  Herring    i  203,  405,  443  ii    64 


Flower  v.  Pcdley, 

• 's  t  !ase, 

Ford  v.  Bennett, 

v.  Brooke, 

Forster  v.  Browning, 
Foster  v.  Lawson, 
Francias's  Case, 
Freeman  v.  Norris, 
Fry  v.  Hill, 
Fysh  v.  Thorowgood, 

G. 

Gadd  v.  Bennett, 
Garrels  v.  Alexander, 
Gainford  v.  Tuke, 
Gerald's  (Sir  C.)  bailiff's  Case. 
Gerrard  (Sir  W.)  v.  Dickenson, 
288,289,31 
Girlington  v.  Pitfield, 
Gobbett's  Case, 
Goddard  v.  Smith, 
Golding  v.  Crowle,  i 

Goldstein  v.  Foss, 
Goodtitle  v.  Braham, 
Gordon's  Case, 
Gould  v.  Ilulme, 
Goulding  v.  Herring, 
Greaves  v.  Blanchett, 
Green  v.  Bennett, 
Greenfield's  (Sir  R.)  Case, 
Grove  v.  Hart, 
Guinn  v.  Phillipps, 
Gunstou  v.  Wood, 
Gurneth  v.  Derry, 
Gurney  v.  Longlands, 
Guy  v.  Livesay, 

II. 


Halford  v.  Smith. 
Hall  v.  Smith, 
Hall  v.  Warner, 

v.  Weedon, 

's  Case, 

Hammond  v.  Kingamill, 
Hancock  v.  Winter, 
Harding  v.  Bulman, 

■ ■  v.  Greening, 

Hare  v.  Meller, 

Hargrave  v.  LeBreton,    i  224,  320 
Vol.  1.  B 


i 
i 
i 
i 
48, 
i 
ii 
i 
i 
i 


8  * 
71 
486 
374 
187 
365 

395 
347 
28 
343 
283 
481 


l 

ii 

i  19, 

i 

i  192, 

ii 

ii 
ii 
279  ii 
ii  305, 
ii 
ii 
i 
i 
i 


451 

17 

20 

195 

256, 

436 

70 

120 

86 

79 

306 

20 

2 

304 

290 

200 

451 

127 

349 

68 

107 

30 

23 

350 


ii  116 

i  411 

ii  114 

i  88 

ii  138 

i  121 

i  373 

i  242 

ii  84 

i  254 

ii  104 


Harvey  \.  Chamberlain, 
Harwood  v.  Astley,  (Sir  J.) 

Hawkes  v.  Hawkey, 
Hayward  v.  Naylor, 
llelly  y    Hender, 
Hensey'a  |  Dr.)  Case, 
Ik-riot  v.  Steward, 
Ilea rle  (Sir  J.)  v.  Osgood, 
Hewlett  v.  Crutchley, 
Hext  v.  Yeoman, 
Hicks's  Case 


i  387 

i  126  442 

i  416,  424 

i    69 

i  417 

ii     24 

i  142,  811,  :;13,  405 

122 

79 

63 

i     13 


Hicks's  (Sir  Baptiste)  Case    i  150,  ii  231 , 

26 


Hill  v.  Yates, 
Hilsden  v.  .Mercer, 
Hilton  v.  Shepherd, 
Hinde  v.  Thompson, 
Hitchon  v.  Best. 
Hobart  v.  Hammond, 
Hodgson  v.  Scarlett, 


Holland  v.  Stoner, 

Ilollis  (Sir  John)  v.  Briscow, 

Holmes  v.  Catesby, 

Holt  v.  Scholefield, 


Hooker  v.  Tucker, 
Home  v.  Powell, 
Hoskins  v.  Ridgway, 
Howe  v.  Prinn, 
Hudson's  Case, 
Hughes  v.  Winter, 
Humber  v.  Ainge, 
Humphreys  v.  Stansfield, 
Hunt  v.  Bell, 
Hunt  v.  Jones, 

v.  Thimblethorpe, 

Hunter  v.  French, 

Hurst  v.  Bell, 
Hyde  v.  Seyssor, 


i  281 
i  48 
i  283 
ii  124 
i  343 
i  281 
i  65,  247,  285,  287, 
294, 460 
i  48 
i  121 
i  480 
i  42,88.  421, 
ii  108,  111 
i  486 
i  74 
342 
133 
33 
i  112 
i  326 
i  144,  145 
i  280 
ii     62 


119,121, 
ii 


69 

450 

68 

87 

352 


I. 


Incledon  v.  Berry, 
Ireland  v.  Blockwell, 
Isaacs  v.  Uraud, 

v.  Howard, 


J. 


i  Jacob  v.  Mills, 

]  Jefferies  v.  Buncombe 
.lolms  v.  Git  tens, 

!  Johnson  v.  Aylmer, 

v.  Bewick, 

v.  Browning, 


75,  77 
i  448 
i  282 
ii  74 
i  280 


i  80 
i  174 
i  476 
i  416 
ii  123 
36,  447 


TABLE  OF  CASES. 


Johnson  v.  Browning, 

v.  Evans, 

v.  Sutton, 

Jones  v.  Heme, 

v.  Stevens, 

Jordan  v.  Lewis, 


ii  69,  80 

i  301 

i  241,279,280,281, 

436,    ii  74 

P.  D.  71 

i  24  86 

ii  6  91 

ii  67 


Kemp  v.  Gee,  •  i  243,  245 

King  v.  Bagg,  i     49 

King  v.  Giffin,  i  158 

(Col.)  v.  Lake,  i  156 

v.  Lake  (Sir  Edward)  i  155 

v.  Waring,         i  301,  359,  443,  456, 

ii  60,  87,  103 
Kinnersley  v.  Cooper,  i  462 

Kirk  v.  French,  ii     67 

Knight  v.  Germain,  ii    80 

Knightly  (Sir  John)  v.  Marrow,  i  109 

Knobell  v.  Fuller,  ii  95,    96 


Mackenzie  v.  Bead, 
Macgregor  v.  Thwaites, 
Macpherson  v.  Thoytes, 
Maitland  v.  Golding, 
v.  Goldncy, 


Maloney  v.  Bartley, 
Manning  v.  Avery, 

v.  Fitzherbert, 


Mason  v.  Jennings, 
v.  Thompson, 


L. 


Lake  v.  Hatton, 


i  233 
ii  253 

Lake  v.  King,     i  244,  253,  254,  262,  274, 

460,  488 

Lamb's  Case,  i  360 

ii  16,  231,  235,  239,  351 

Lancaster  v.  French,  i  135 

Lane  v.  Applegate,  i  456,  564 

v.  Howman,  i  478 

Lawrence  v.  Woodward,  i  109 

Layer's  Case,  ii  24,  28,49 

Leach's  Case,  ii  295 

Ledwith  v.  Catchpole,  ii     80 

Lee  v.  Huson ,  ii     56 

Legate  v.  Wright,  ii  122 

Leggatt  v.  Tollervey,  ii  67,  68 

Leicester  (Earl  of)  v.  Walter,       ii  88,  89, 

91,  92,  93,  97 

's  (Earl  of)  Case,  i  185 

Leigh  v.  Webb,  i  449 

Levi  v.  Milne,  ii  322 

Lewis  v.  Clement,  i  261 

v.  Farrell,  i  450 

v.Walter,   i  273,  337,  405,  408,  418 

458,  459,  487 
Lewknor  v.  Crutchley,  i  23,  34,  35 

Lilnal  v.  Smallman,  ii     79 

Lincoln's  (Earl  of)  Case,  i  182,  184 

Lloyd  v.  Morris,  ii  109 

Lowfield  v.  Bancroft,  i  416 

Lowry  v.  Aikenhead,  i  300 


M. 


Macclesfield's  (Earl  of)  Case,  i  342 

M'Cloughan  v.  Clayton,  ii     73 

M'Dougall  v.  Claridge,       i  322,  165, 167, 

252.  336 
M'Leod  v.  Wakeley,  ii    35 


Matthews  v.  Cross, 
May  v.  Brown, 

Mayne  v.  Digle, 

v.  Fletcher, 


Mead  v.  Daubigny, 
Medhurst  v.  Balaam, 
Memis  v.  Jopp  and  others, 
Mercer  v.  Sparks, 
Metcalf  v.  Markkam, 
Mills  v.  Spencer, 


P.  D.     33 
i 

ii  20 
ii  103 
i  335,  347 
i  251 
i  192 
i  356 
i  157 
i  52 
i  195 
i  410 
ii  100 
i  39 
ii  9 
ii  56 
i  199 
P.  D.  33 
i  223 
i  343 
i  473 
ii  98 
ii  4,  9 
ii  50 
i  36 
ii  89 
i  202 
i  186 
i  326 
i  450 


Moises  v.  Thornton, 
Molony  v.  Bartley, 
Moor  (Sir  Geo.)  v.  Foster, 

v.  Moore, 

Moore  v.  Meagher, 
Mordant  (Lord)  v.  Bridges, 
Mordington's  (Lord)  Case, 
Morgan  v.  Hughes, 
Morris  v.  Langdale,  i  139,  207,  478, 

ii    65 
Morrison  (Dame)  v.  Cade,  i  430 

v.  Kelly,  ii  67,  68 

's  Case,  i  435 

Mors  v.  Thacker,  i  360 

Mullett  v.  Hulton,  ii  15,  87,  88,     98 

Muney's  Case,  i  103 

Mure  v.  Kaye,  ii  73 

Musgrove  v.  Bovey,  i  126 


N. 


Nelson  v.  Dixie, 

v.  Hawkins, 

v.  Smith, 

Neve  v.  Cross, 
Newman  v.  Aleyn, 
v.  Bailey, 


i  368 

ii  119 

i  390 

i  108 

i  207 

i  479 

Newsam  v.  Carr,  i     71 

Newton  v.  Stubbs,  i  364 

Norfolk  (Duke  of)  v.  Anderton,  i  345 

Northampton's  (Earl  of)  Case,     i  69.  329, 

332,  338,  ii  103 

(John  de)  Case,      ii  235,  237, 

269 

(Mayor  of)   Case,  ii  278 

Norwich's  (Bishop  of)  Case,  i  186 

Nutt's  (Elizabeth)  Case,  ii  30,     33 


Ogden  v.  Turner, 
Oldham  v.  Peake, 
Onslow  v.  Home, 


O. 

i  15,  40,  14,  199 

ii  51 

i  41,  42,  120,123,  Ylb 


TABLE  OF  CASES. 


Orphwood  v.  Barkes, 
Osborne  v.  Brookes, 
Oliver  v.  Bentinck, 


373 
890 
266 


Pain  v.  Rochester,  ii    80 

Paine's  (Samuel)  Case,  ii  288 

Parkcs  v.  Langley,  i  450 

Parrott  v.  Fishwick,  ii     76 

Parry  v.  Collis,  i  406 

Pasley  v.  Freeman,  i  224 

Pasquin's  •  ii  100 

Pattison  v.  Jones,  i  301 

Peachntn's  I  ii  169 

Peacock  v.  Raynal,  (Sir  G.)  i  1-j4 

Peake  v.  Oldham,           i     66,  65,  96,  1  '.'1 . 

204,  209,  394,  429,  489 
Pearce  v.  Whale, 
Peard  v.  Johnes, 
Pembroke  (Karl  of)  v.  Staniel 
Penfold  v.  Westcote, 
Pennyrnan  v.  Rabanks, 
Phillips  v.  Jausen, 


v.  Jarwen, 
v.  Bhaw, 


Pickering's  (Lewis)  Case, 
Pierpoint  v.  Sliapland, 
Pickford  v.  Gutch, 
Pigot's  Case, 
Pine's  (Hugh)  Case, 
Pinkney  v.  Collins, 
Pitt  v.  Donovan, 


Plunkett  v.  Cobbett, 

Poe's  (Dr.)  Case, 

Pollard  v.  Mason, 

Pope  v.  Foster, 

Portman  (Sir  II.)  v.  Stowell, 

Powell  v.  Plunkett, 

Power  v.  Shaw, 

Preston's  (Lord)  Case, 

Prideaux  v.  Arthur, 

Prosser  v.  lirommage, 

Prynne's  Case, 
Purcell  v.  Macnamara, 


Purdy  v.  Staccy, 
Pyne's  Case, 


i  130 
i  188 
ii  51 
i  317 
i  183 
ii  13 
i  210 
i  461 
ii  231 
ii  60,  67 
ii  3 
i  236 
ii  186,  167,  168 
i  312 
i  820 
ii  104 
ii  33,  57 
i  76,  103 
i  66,  07 
i  451 
i  40 
i  237,  304 
ii  124 
ii  24,  28 
ii  285 
-  i  120 
ii  53 
ii  368 
i  451 
ii  76 
i  37 
i  302 


Regina  v.  Bedford,  ii  168, 

v.  Drake,  (Dr.) 

v.  Langley,    ii  1%,  198,  199, 


v.  Nun, 

v.  Wrightson, 


ii  197, 
Revett  v.  Braham,  ii  26, 

Hex  v.  Abingdon,  (Lord)    i  213,  240, 
'_71  ii  246, 


v.  Alderton, 

v.  Almon, 

v.  Amphlett, 
v.  Archer, 
v.  At  wood, 
v.  Aylett, 
v.   Hate, 
v.  Bayley, 

v.  Bear, 

v.  Deere, 

v.  Benfield, 

v.  Benfield  and  Sanders 

v.  Berry, 

v.   Bickerton, 


i  416, 

i 
ii  31,  ■ 

ii 
ii    861, 

ii  14::, 

i 

ii  278, 


ii  136,  c- 

ii   1"), 

ii  281, 

ii 


Birch, 

Bliss,  Clerk, 
Brereton, 
Brewster, 

Brown, 
Browne,  (Dr.) 
Budd, 
Bunts, 
Burdett, 


ii  252,  282, 


i  361,  875, 


ii  163, 
ii 


\\ 


Radcliffe  (Lady)  v.  Shubley, 
Ram  v.  Landey, 
Rastall  v.  Stratton, 
Bavenga  v.  Macintosh, 
Read  v.  Hudson, 
Redman  v.  Pyne, 
Reed  v.  Taylor, 

Rees  v.  Smith, 


i  869 
i  260 
i  451 
i  281 
i  188 
i  137 
i  446 
ii  74 
ii    67 


v.  Burke, 

v.  Carlile, 

v.   Carter, 

v.  Cator, 

v.  Chappel, 

v.  Chrichly, 

v.  Clarke, 

v.  Clement, 

v.  Clerk, 

v.  Cobbett, 

v.  Creery, 

v.  Creevey, 


ii  38,  39,  98, 

304,  306,  312, 

ii 

i  261, 

ii  33,  143,  150, 

ii  42, 

ii  27, 


ii  261, 

i  419,  ii 
ii  198, 

ii 
i  214,  254,  274, 


Cromwell, 
Culpepper  (SirT.) 

Curl, 


v.  Cuthel, 
v.  Darby, 


ii  195,  196,  198, 
"212, 


v.  Davison, 

v.  Dawson, 

v.  De  Berenger  and  Ors, 

v.  D'Eon 

v.  Dudd,  ii  31, 

v.  Dormer, 

v.  Dover, 


186 
382 
>09, 

199 

27 

428 

306 
214 

.  51 

49 

• 

111 

326 
257 
865 
234 

41 
303 
361 
370 
233 
290 

31 
186 
380 
162 
279 
173 
311 
366 
244 
364 
303 
263 
820 
237 

28 
286 
212 
188 
206 
.11 
194 
183 
460 
215 

09 

24 
157 

33 
L99, 
292 
202 
439 

■i-:\ 

216 
34 

29 


TABLE  OF  CASES. 


Rex  v.  Drakard, 

. v.  Diaper, 

v.  Ellis, 

v.  Enes, 

v.  Evans, 

.  v.  Farrington, 

v.  Fielding, 

v.  Finnerty, 

. v.  Fisher, 

v.  Fleet, 

v.  Foster, 

v.  Franklin, 

v.  Fuller, 

v.  Gilliam, 

v.  Girdwood, 

v.  Gordon,  (Ld.  G.) 

. t.  Griffin, 

v.  Hall, 

v.  Hankey, 

. v.  Harris, 

.  v.  Harrison, 

.  v.  Hart, 

v.  Hart  and  White, 

. v.  Harvey, 

v.  Haswell, 

. v.  Haydon, 

v.  Hensey 

v.  Herries, 

. v.  Higsrins, 


ii  194 
ii  289,  864 

i  in". 

i  325  ii  282 

i  439  ii  224 

ii  183 

ii  291 

ii  3G7 

i  261,  265  ii  194 

i  261,265  ii  194 

i    90 


Hill, 
Holland, 

Holloway  and  Allen,  u  A* J 

.Holt,     i  407  ii  308,309,  326,  3o9 


.  v.  Hone, 

.  v.  Home, 

y.  Hucks, 

\.  Hulpin, 

y.  Hunt, 

y.  Incledon, 

v.  Jenneaur, 

, v.  Jenour, 

y,  Johnson, 

. v.  Joliffe, 

v.  Jones,  (Gale) 

, y.  Kearsley, 

. v.  Kettleworth, 

v.  Kinaston, 

y.  Knell, 

y.  Lambert  and  Perry, 


y  Naber  "  ^5 

v.  Nutt,' (Richard)   ii  161,181,342 


■  y.  O'Connor, 
•  v.  Orme, 

-  v.  Osborne 

-  v.  Owen, 

-  v.  Payne, 

-  y.  Pearce, 

-  v.  Peltier, 

-  y.  Penny, 

-  y.  Phillips, 

-  v.  Pinkerton, 

-  v.  Pocock, 

-  v.  Ravensworth, 

-  v.  llayner, 

-  v. Read, 

-  r.  Rev  ell, 

-  v.  Roberts, 


v.  Rosenstein, 

y.  Salisbury, 

y.  Scott, 

._  v.  Sedley,  (Sir  Chas.) 

y.  Selby, 
v.  Shaw, 
v.  Sharpe, 
y.  Sharpness, 


24 
ii  213,276 
ii  213,  276 
ii  186,  203,  342 
i  451  ii  164,  165,  106 
ii    19,    56 
ii  218 
ii  198 
i  214,  ii  208 
ii  362 
ii  198,  199,  277 
i  153 
ii  '203 
ii  156, 157,  158 
ii  195, 198 
D.   45,  129,1232 
11254,280,363 
■  230 


ii  247 

ii  183 

ii  155,  157 

158,  159 

ii  197 

i  405 

ii  290 

ii  361 


v.  Shebbeare,  (Dr.J)  ii  164,  165,  342 


y,  Lawrence, 

v.  Leafe, 

v.  Lee, 

v.  Lofield, 

y.  Lovell, 

y.  Marsden, 

v.  Marshall, 

. y.  Martin, 

v.  Mathews, 

y.  Mayor  and  Dowling 

. y.  Middleton, 

v.  Miles, 

v.  Mozagora, 


ii  326 
i  56,  398,  422,  426 
ii  191,  304,  306 
i  451 
ii  363,  364 
ii    50 
ii  69 
i  326  ii  282 
ii  214 
ii  34,  35,  36,  39,  194 
ii  275,  286 
ii  194 
ii  174 
ii    69 
ii  289 
ii  42,  237 
ii  175, 185 
307,  320 
ii  186 
ii  199 
ii  277 
i  271 
ii  194 
i  416 
ii  285 
ii  310 
i  420 
ii  264 
ii  36,  263,  264 
ii  287 
ii  183 


2 

ii  344 

ii  69,  202 

ii  278 

ii  208 

ii  284 

ii  276 

ii  204 

ii  265,  302 

ii  309,  310 


v.  Shelley, 

—  v.  Shipley, 

—  v.  Smith , 

v.  Smollett,  (Dr.) 

y.  Southerton 

y.  Sparrow. 

v.  Staples, 
v.  Stockdale, 
y.  Summers, 

Zvlaylor!  tt  137. 143,  U4,  2i 

_  v'.  Thicknesse,  Esq.  (Phillip)     ii  278 

y.  Thompson  and  others  u  338 

tr   Tmliim  11  43,  21Z,  116 

—  ;:TuS;  "163,187193,340 

v.  Vint  »  217,  219 

v.  Waddington,  ^  ^  £» 

_Y.Walter,  »  33,  212,  362 

v.Warte,  .        .."^ 

"7— •ffa.iRjfai 


ii  282 

i  438 

ii  13,307,  311,  324 

ii  199 

ii  33,  274 

ii  263 

ii  287 

i 257,  258 

tVUllilliia,  ....      ilQn 

ii  41,  50, 141, 150, 174. 274  289 

-,„.,    '  n  362,  366 

v-  Wllson'  .  ii  354;  362 

ii  291.  342,  344,  351 

ii  138,  144,  145 

ii  367 


y.  Webster, 

_  v.  Wegener, 

_  y.  Weltje, 
_  y.  White, 
_  y.  Wiatt, 
_  v.  Willett, 
_  v.  Williams, 


. v.  Withers, 

v.  Woodfall, 

y.  Woolston, 

y.  Wrennum, 


TABLE  OF  CASES. 


9 


Rex  v.  Wright         i  257,  2C3,  ii  245,  287 

v.  Young  i  866 

Reynolds  v.  Kennedy  i  280,  281 

Rich  v.  Holt  i490,  ii  109 

Roberts  v.  Camden    i  20,  58,  75,  428  ii  51 
Robinson  v.  Jermyn 

Robinson  v.  Macdougall  ii  323 

Rodriguez  v.  Tadmore  ii  '.<7 

Roe  v.  Rawlings  ii  26 

Rodgers  v.  Clifton  (Sir  Gcrvase)  i  296 

v.  Gravat 

Ross  v.  Lawrence  i  112 

v.  Mackerrel  P.  D.  H 

Rowe  v.  Roach  |  U2,  482 

11  v.  Corne  i  864 

(Sir  William)  v.  Ligon  i  87 

v.  Macquester  ii  50' 


S. 


Sachcverell's  (Dr.)  Case  i  3G7,  368 

Salisbury  (Bishop  of)  v.  Nash  i  467 

Salter  v.  Brown  i  29 

Samuel  v.  Payne  ii  80 

Sand  well  v.  Sand  well  ii  13 

Saunders  v .  Mills  i  273 

Savage  v.  Robery  i  41:;.  |jr. 

Savile  v.  Jardine  i  160,  413 

Saville  v.  Roberts  i  198  ii  75 

Scoble  v.  Lee  i  40 

Scott  v.  Baillie  P.  D.  G4 

Seaman  v.  Bigg  i  128 

Sellers  v.  Till  i  405  408 

Seycroft  v.  Dunker  i  138 

Shaftesbury's  (Ld)  Case  i  344 

Shaloner  v.  Foster  i  386,  426 

Shaw  v.  Thompson  i  90 

Sidnaui  v.  Mayo  i  380,  381 

Sidney's  Case  ii  20,  24,  169 

(Colonel)  Case  ii  25 

Skutt  v.  Hawkins 
Smale  v.  Hammon 
Smead  v.  Badley 
Smith  v.  Croker 

v.  Flynt 

v.  Hixon 

v.  Hodgkins 

v.  Macdonald 

v.  Richardson 

Smith  v.  Spooner 

v.  Taylor 

v.  Walker 

v.  Wisdome 

v.  Wood 

Snagg  v.  Gee 
Snede  v.  Bailley 
Snell  v.  Webling 
Suowdon  v.  Smith 
Snowe  (Sir  R)  v. — 
Soane  v.  Knight 
Somers  v.  House 
Southara  v.  Allen 
Spall  v.  Massey 
Speed  v.  Parry 


Spencer  v.  Jacob 
Spooner  v.  Gardiner 
Stanhope  v.  Blith 
Stanton  v.  Smith 
Stevens  v.  Aldridge 
Stewart  v.  Allen 


i  385 

i  13,  166 

i441 

i  347,  848 

i  32 

i  352 

i  304 

ii  7::,  79 

i  222,465,466,  470 

i  317,  318  ii  104,  105 

ii  3,  10  j 

ii  71  j 

i&4 

i  456  ii  87 

i  81, 

i  145  ii  63 

i  109 

ii  93,  94 

i  396 

i  305 

i  51 

i  138 

i  174,  l(t7 

i  74 


ii  74 

ii  67 

i  13 

i  413 

i  405 

P.  D.  82 


Stiles  v.  Nokes  i  261,  269,  472,  190 

8tirley  v.  Hill  i  70 

].ry  v.  Clement  ii  305,  306 

Btoddart  v.  Palmer  i  t-'-l 

Btodder  v.  Harvey  i  281 

Stone  v.  Smalcombe  i  32 

7.  178 
Stranger  v.  Searle  ii  20 

. .  Foreman.  ii  64 

Stuart  v.  Lovell  i  311   ii  51. 

Subly  v.  Mott  i  35$ 

Stump  v.  White  i  78 

Swithen  and  Wife  v.  Vincent  and  wife 

i  355 
Sydenham  (Sir  John)  v.  Man  i  62 

Sydenham's  (Sir  J.)  Case  i  857 

Syke's  v.  Dunbar  ii  70,  7'-',  75 

Sylvester  v.  Hall  ii  67 


T. 


Tabart  v.  Tipper     i  41,  308,  311 

880,  381 

ii  100 

Talbot  v.  Case 

i  81 

Tassan  v.  Rogers 

i  143 

Tate  v.  Humphreys 

H55 

Taylor  v.  Cooke 

H26 

Tempest  v.  Chambers 

i  67 

Terry  v.  Hooper 

i  120 

Thomas  v.  Jackson 

i  127 

Thompson  v.  Bernard 

i  80  ii  86 

v.  Shackell 

i304 

Thorley  v.  Kerry  (Lord) 

i  162 

Tibbott  v.  Hayues 

i  33 

Tilk  v.  Parsons 

ii  65 

Tindall  v.  Moore 

i430 

Townsend  (Ld.)  v.  Hughes  (Dr. 

)       i  178, 

181  ii  106 

Turner  v.  Sterling 

i  111 

Turner  v.  Turner 

ii  73 

Tutchin's  Case 

i  4U0 

Tut  hill  v.  Miltou 

i  403 

Tutty  v.  Alewin 

ii  136 

u 

Underwood  v.  Parkes 
Upton  v.  Pinfold 
i  j  sheer  v.  Betts 


Vaughan  v.  Ellis 

v.  Leigh 

Vessy  v.  Pike 
Vicars  v.  'Hilcocks 


i  467  ii  87,  93 

i68 

i481 


i  145 

i  145 
i  465 

i  204  ii  65 


10 


TABLE  OF  CASES. 


Villars  v.  Mousley  i        114,  158,  167,  168 


W 


Waithman  v.  Weaver 
Wakeley  v.  Johnson 
Walden  (Sir  Lionel) 
Wallace  v.  Alpine 
Walter  v.  Beavor 
Walters  v.  Mace 
Ward  v.  Reynolds 
Warne  v.  Chadwell 
Wate  v.  Briggs 


Mitchell 


H91 

iilOO 

i  39 

ii  77 

i  93 

i  373 

i  57 

ii  56,  58,  102 

i  451 


Waterfield  v.  Chichester  (Bishop  of) 

i  259 
Watson  v.  Reynolds  ii  104 

Watson's  Case  i  210 

Weatherstone  v.  Hawkins  i  223,  294,  299, 

456 
Weaver  v.  Loyd  i  483  ii  86,  101,  102 

Webb  v.  Poor  i  81 

Weller  v.  Baker  i  347 

West  v.  Phillips  i  105 

Weston  v.  Dobniet  i  247 

Wetherell  v.  Clerkson  i  441  ii  62 

Whittington  v.  Gladwin  i  138,  142 

Wicks  v.  Fentham  ii  69 


Wick's  Case 
Williams  v.  Callender 
Wilner  v.  Hold 
Wilson  v.  Stephenson 
Winchester's  (Ld)  Case 
Wiseman  v.  Wiseman 
Wood  v.  Brown 

v.  Guston 

v.  Merrick 

Woodfall's  Case 
Woodford  v.  Ashley 
Woodward  v.  Downing 
Woolnoth  v.  Meadows        i 
227,  331,  332, 
Wright  v.  Clements 
Wyatt  v.  Gore 
Wyld  v.  Cookman 


Young  v.  Pridd 
Yrissair  v.  Clement 


1  35 
ii  90 

i  394,  426 

i  326  ii  84 

il85 

i 100,  388 

i  367 

i283 

i  66,  67 

ii  34 

i450 

i  162 

58,  69,  75, 

430,473  ii  103 

i368 

ii  50,  98 

i477 


i  351 

ii  11,  87,  320 


Zenobio  v.  Axtell         i  160,  363,  368,  411 


TABLE  OF  CASES 


CITED  IN  THE  NOTES  ADDED  TO  THIS  EDITION. 


A. 

Alderman  v.  French 
Alexander  v.  Alexander 
Allen  v.  Crofoot 
Andreas  v.  Koppenheafer 
Andrews  v.  Woodman 
Andrews  v.  Van  Duzer 
Anson  v.  Stewart 
Austin  v    Hanchett 
Avarillo  v.  Rogers 


B. 

Backus  v.  Richardson 
Barbaud  v.  Ilookham 
Barnes  v.  Webb 
Bayard  v.  Passmere 
Baylis  v  Lawrence 
Beach  v.  Ranney 
Beach  v.  Beach 
Beardsley  v.  Maynard 
Bevis  v.  Story 
Bell  v.  Bugg 
Binns  v.  McCorkle 
Blake  v.  Pilford 
Blanchard  v   Thorn 
Bod  well  v.  Swan  and  wife 
Bornman  v.  Boyer 
Boulton  v,  Clapham 
Bradley  v.  Heath 
Bradt  v.  Towsly 


ii  96,  99 

C. 

Caldwell  v.  Abbey 

187 

i  32,  34 

Chaddodk  v.  Briggs 

i  130 

i204 

Chalmers  v.  Shackell 

ii  97,  99 

i  37,  43 

Chapman  v  Gillet 

i90 

i  61,  392 

Charlton  v  Walton 

ii  97,  99 

i  236,  466 

Chase  v.  Whitlock 

i24,  ST 

i  235 

Cheat  wood  v.  Mayo 

ii  97 

i  340  ii  96 

Chipman  v.  Cook 

i  37,  130 

i  370 

Clason  v.  Gould 

i  342 

Cockayne  v.  Hodgkin  son 

i  455 

Coffin  v.  Coffin 

ii  106 

Coleman  v.  Southwick 

ii  97,  99,  106 

Commonwealth  v.  Clapp, 

ii  194  ii  252 

il34 

Cooper  v.  Bissell 

ii  108 

i  156 

Cooper  v.  Lawson 

i350 

i  466 

Cornelius  v.  Van  Slyck, 

i  76 

ii  262 

Cowden  v.  Wright 

i  351 

i  214  ii  358 

Cramer  v.  Riggs 

i 123, 194 

i  202,  349 

Cummen  v.  Smith 

ii  6 

i  349 

Curry  v.  Walter 

i  456 

iilOl 

i  38 

*       i  367 

i  340 

i  246,  455 

i  246,  455 

ii  96 

i  61 

i250 

i  208,  321,  455 

i202 


Brooke  v.  Sir  Henry  Montague  i  166 
Brooker  v.  Coffin                       i  21,  28,  43 

Brooks  v.  Bemiss  ii  96 

Brown  v.  Croom  i  455 

Brunson  v.  Lynde  ii  96 

Buford  v.  McLuny  ii  96 

Burlingham  v.  Burlingham  i  304 

Burtch  v.  Nickerson  i  134 

Burton  v.  Worley  i  456 

Buys  and  wife  v.  Gillespie  i  28 


Davis  v.  Lewis 
De  Crespigny  v.  Wellesley 
Delany  v.  Jones 
Demarest  v.  Haring 
Dexter  v.  Taber 
Dickinson  v.  Barber 
Dole  v.  Lyon 
Duncombe  v.  Daniel 
Dunman  v.  Bigg 


E. 


i  340 

i340 

i455 

i  59 

i  60.  93 

ii  241 

i  340 

i  194 

i  325,  455 


East  v.  Chapman 

ii  97 

Ebersull  v.  King 

1348 

Edmonson  v.  Stevenson 

i  465 

Eifert  v.  Sawyer 

U96 

12 


TABLE  OF  CASES. 


Elliott  v.  Ailsbury 
Else  v.  Ferris 


i  28,  43 
1466 


F. 


Fairman  v.  Ives 

i  246, 

455  ii  358 

Finch  v.  Gridley's  exr's. 

i  119  ii  6 

Findlay  v.  Bear 

i  93 

Fisher  v.  Clement 

ii  358 

Flint  v.  Pike 

i  466 

Foot  y.  Brown 

i  136 

Forward  v.  Adams 

i  123 

Fowle  v.  Bobbins 

i  89 

Gibson  v.  Williams 
Gidney  v.  Blake 
Gilman  v.  Lowell 
Godson  v.  Flower 
Gorham  v.  Ives 
Gould  v.  Weed 
Grant  v.  Astle 


i  60,  61,  392 

i  110,  390 

ii  96,  97,  99 

i  455 

i  60 

ii  110 

ii  108 


K. 


H. 

Haire  v.  Wilson, 
Hall  v.  Smith 
Hamilton  v.  Dent 
Hare  v.  Mellen 
Harris  *v.  Huntington 
Harris  v.  Lawrence 
Harwood  v.  Astley 
Hastings  v.  Lusk 
Hersh  v.  Ringwalt 
Hinkley  v.  Emerson 
Hodgson  v.  Scarlett, 
Hogg  v.  Wilson 
Hollingsworth  v.  Duane 
Holt  v.  Scholefield 
Home  v.  Bentinck 
Hopkins  v.  Beedle 
Horner  v.  Marshall's  adm'x, 
Hotchkiss  v.  Lathrop 
Hotchkiss  v.  Oliphant 
Howard  v.  Thompson,         i 
Hunt  v.  Algar 
Hyde  v.  Bailey 


Inman  v.  Foster 


i  214  ii  358 

i  139 

i  89 

i  456 

i  355 

i  383 

i  194 

i  250,  456 

i  340 

i  93 

i  455,  456 

ii  108 

ii  262 

i  43 

i  241,  456 

i  22  ii  112 

ii  241 

ii  97 

ii  99 

208,  246,  455 

i  21 

ii  96 


i  340  ii  96 


Kean  v.  McLaughlin 
Kemp  v.  Gee 
Kennedy  v.  Gregory 
Kennedy  v.  Lowry 
King  v.  Parsons 
Kirkman  v.  Oxley 
Knight  v.  Gibbs 
Knobell  v.  Fuller 
Kyzer  v.  Grubbs 


Lake  v.  Hatton 

Lake  v.  King 

Larned  v .  Buffinton 

Lathrop  v.  Hyde 

Leicester,  Earl  of  v.  Walter 

Leister  v.  Smith 

Levi  v.  Milne 

Lewis  v.  Hawley 

Lewis  v.  Few 

Lewis  v.  Walter 

Lewis  v.  Clement 

Lillie  v.  Prin 

Lindsey  v.  Smith 

Livingston  v.  Rogers 

Logan  v.  Steel 

Ludlum  v.  McCuen 

Lyle  v.  Clason 


i  250  ii  57 
i  456 
i  340,  ii  97 
i  366 
i  235 
ii  97 
i  455 
ii  96,  97 
i  366 


i  235 

i  456 

208  ii  97,99 

i  304 

ii  95,  96,  97 

i  340 

ii  358 

i  139 

i  194,  383 

i  340 

i  472 

i  456 

i  37,  130,  385 

ii  112 

i  61 

i  43 

ii  14, 112 


M. 


J. 


Jacobs  v.  Fyler 
Jarvis  v.  Hathaway 
Jekyl  v.  Sir  John  Moore 
Johnson  v.  Evans 


i  22 
i  325 
i  456 


ii  96 

i  422 

i  370 

i  455 

i  60 

ii  96 

i  119  ii  6 

i  340 

340  ii  96,  97,  99 

i  383 


McAlexander  v.  Harris 

McClaughry  v.  Wetmore 

McConnell  v.  McCoy 

McDougall  v.  Claridge 

McKinley  v.  Rob 

McLuny  v.  Bufford 

McPherson  v.  Chadell 

Maitland  v.  Goldney 

Mapes  v.  Weeks  i 

Mappa  v.  Pease 

Martin  v.  Stillwell  i  37,  43 

Matson  v.  Buck  ii  96 

Mowbray  v.  Barker  ii  97 

Mayne  v.  Digle  >  i  43 

Mayrant  v.  Richardson  i  194 

Middleton  and  wife  v.  Calloway  ii  96 

Miller  v.  Kerr  i  340 

Miller  v.  Miller  i  64,  366,  370 

Miller  v.  Maxwell  i  392 

Miller  v.  Parish  i  43 

Morris  v.  Duane  i  340  ii  99 


N. 


Neal  v.  Lewia 


456   Nestle  v.  Van  Slyck 


ii  106, 108 
i  385 


TABLE  OF  CASES. 


13 


Ney  v.  Otis  i  CI 

Niven  v.  Munn  i  89 

North  v.  Van  Slyck  i  87  I 

Northampton's  (Karl  of  )  Case,  i  340 


0. 

O'Donaghuc  v.  McGovern. 
Ogden  v.  Turner 
Olmstead  v.  Miller 
Onslow  v.  Home 


i  246,  826,  466 

i  i:; 

i  202 

i  43,  194 


Paddock  v.  Salisbury 

ii  90 

Pasley  v.  Freeman 

i  325 

Patton  r.  Gurney 

i  355 

Pattison  v.  Jones 

i  294 

Pelton  v.  Ward 

i  88 

People  v.  Freer 

ii  262 

People  v.  Ruggles 

ii  137 

People  v.  Croswell 

i  5  ii  252 

Plunket  v.  Cobbett 

i  235 

Powell  v.  Dubois 

i  194 

Prosser  v.  Bromage 

i  325,  455 

Purdy  v.  Stacey 

i  43 

Purple  v.  Horton 

ii  97 

R. 

Ram  v.  Lamley 
Rathbon  v.  Emigh 
Respublica  v.  Oswald 
Respublica  v.  Duane 
Rex  v.  Abingdon 
Rex  v.  Creevy 
Rex  v.  Hart 
Rex  v.  Burdett 
Rex  v.  Home 
Riggs  v.  Denniston 
Rogers  v.  Clifton 
Root  v.  King 
Runkle  v.  Meyer 
Ryckman  v.  Delavan 


Saunders  v.  Mills 
Saunderson  v.  Ruddes 
Savile  v.  Jardin 
Sayre  v.  Jewett 
Schock  v.  McChesney 
Seymour  v.  Merrills 
Shaffer  v.  Kintzer 
Bhephard  v.  Men-ill 
Shipley  v.  Todhunter 
Simpson  v.  Brookes 
Smith  v.  Minor 
Snowdon  v.  Smith 
Southwick  v.  Stevens 
Springsteiu  v.  Field 


Stafford  v.  Green  i  22  ii  108 

State  v.  Allen  ii  252 

Steele  v.  Southwick  i  5 

Stevenson  v.  llayden  i  21.  -7 

Stevens  and  Cagger  v.  Adams  i  119 

Stokes  v.  Stuckey  i  97 

Sumner  v.  Buel  i  347 


i  456 

i  134 

ii  262 

ii  268 

i  456 

i  456 

i  325 

ii  358 

i  61 

i  164 

i  455 

i  194  ii  96,  97 

-    i  340 

i  347 


ii  97 
i  194 

i  24 

i  385  : 
i  251,  456    ii  67 
ii  96 1 
i  43  | 
i  466 
i  455 
i  194 
i  28 
ii  97 
i  383  ii  28,  106 
ii  96 


Thomas  v.  Rumsey 
Thomas  v.  Croswell 
Thorn  v.  Blanohard 
Tillotson  v.  Chectham 
Titus  v.  Follett 
Tobias  v.  Harland 
Todd  v.  Hawkins 
Treat  v.  Browning 
Turrill  v.  Dolloway 


866 

i  422  ii  55 
i  246,  166 
i  383 
i  385 
i  137 
i  166 
i  340  ii  96,  97 
i  194 


U. 

Underwood  v  Parks  i  232  ii  97 

Union  Turnpike  Co.  v.  Jenkins  ii  108 

United  States  v.  Hudson  ii  101 


Van  Ankin  v.  Westfall,  i  21,  466 

Vanderzee  v.  McGregor  i  246,  455 

Van  Ness  v.  Hamilton  i  43,  164,  236,  481 
Van  Rensselaer  v.  Dole  i  99 

Van  Spike  v.  Cleyson  i  223,  325,  455 

Van  Vechten  v.  Hopkins       i  60,  342,  392 

422 
Vick  v.  Whitfield  ii  96 


W. 

Wallis  v.  Mease 
VValmsley  v.  Russell 
Walton  v.  Singleton 
Ward  v.  Clark 
Warr  v.  Jolly 
Watson  v.  Hampton 
Watts  v.  Frazer 
Weatherstone  v.  Hawkins    i 
Wid  rig  v.  Oyer 
Williams  and  wife  v.  Mayer 
Williams  v.  Bill 
Wilmarth  v.  Mountford 
Wolcott  v.  Hull 

N I  ward  v.  Lander 

Woolnoth  v.  Meadows 
Wormonth  v.  Cramer 
Wyatt  v.  Gore 


V. 


Young  v.  Miller 


ii  57 

i  43 

i  59 

i  22 

i  208 

i  22 

ii  1<»1 

208,  325,  455 

i  i:: 

and  wife  ii  96 

i  202 

i  208 

ii  96 

i  246,  166 

i  61 

i  309  ii  97 

i  826 


i  34,43 


CONTENTS  OF  VOL  I. 


CHAPTER  I. 

Division  of  the  Subject — Actionablo  Words — Criminal  Charge  1 

CHAPTER  II 
Words  Imputing  an  Infectious  Disorder 113 

CHAPTER  HI. 
Where  the  Imputation  Affects  a  Person  in  his  Office,  Profession,  or 
Business 117 

CHAPTER  IV. 
Where  the  Words  Tend  to  the     Party's  Disinherison  or  Affect  His 
Title  to  Land 142 

CHAPTER  V. 

Where  the  Slander  is  Propagated  by  Printing,  Writing  or  Signs         148 

CHAPTER  VI. 

Of  Scandalum  Magnatum 175 

CHAPTER  VH. 

Of  Special  Damage l9° 

CHAPTER  VIII. 
Of  Publication  and  Intention — Malice  in  Law  -         -         -       209 

CHAPTER  IX. 

Justification— Truth  229 

CHAPTER  X. 

Of  Publications   Made  in    the  Course  of   Parliamentary    or  Judicial 

_  ,.  .  OQQ 

Proceedings  ...         - 


16  CONTENTS. 

CHAPTER  XI. 
Parliamentary  and  Judicial  Reports 257 

CHAPTER  XII. 
Probable  Cause         -  • 276 

CHAPTER  XIII. 
Malice  in  Fact      ,------  -       292 

CHAPTER  XIV. 

Repetition  of   Slander  Invented  by  Another        ....      329 

CHAPTER  XV. 
Of   the  Process  and  Pleadings 341 

CHAPTER  XVI. 
Of  the  Defendant's  Plea 453 

CHAPTER  XVII. 
Of  the  Replication  492 


PREFACE 


TO   THB 


SECOND    AMERICAN  EDITION. 

Before  publishing  this  edition  all  the  cases  decided  in  the  English  and 
American  courts  on  the  subject  of  defamation,  since  the  publication  of  the 
first  American  edition  of  this  work,  were  carefully  read  and  considered, 
and  a  note  taken  of  every  case  containing  any  thing  new,  illustrative  of 
principles  previously  settled,  or  calling  in  question  or  casting  a  doubt  upon 
such  principles.  Amongst  those  of  the  former  class  are  the  cases  of  Kelly 
v.  Vartington,  2  Nev.  &  M.  460  j  4  Barn.  &  Aid.  700  ;  Wright  v.  Wood- 
gate,  2  C.  M.  &  BT,  573 ;  1  Tyr.  &  G.,  12;  Padmore  v.  Lawrence,  11  Adol. 
&  Ellis,  380  ;  Todd  v.  Hawkins,  8  Carr.  &  Payne,  888  :  2  M.  &  Bob.  20; 
and  Blachham  v.  Pugh,  2  Mann.  Gr.  &  Sc,  611  ;  and  of  the  latter  class 
are  Fountain  v.  Boodle,  3  Queen's  B.  B.,  5  :  2  Gale  &  D.,  455  ;  and  Cox- 
head  v.  Richards,  10  (English)  Jurist,  p.  984,  anno  1846.  All  these  cases 
are  upon  the  subject  of  privileged  communications,  and  will  be  found  noted 
in  Vol.  II.,  p.  58,  note  (2).  The  two  last  named  cases,  and  particularly 
that  of  Cozhead  v.  Richards,  are  very  interesting,  and  have  been  supposed 
to  unsettle  the  law  on  the  subjects  to  which  they  relate  ;  but  such  supposition 
was  erroneous,  as  is  shown  in  the  note.  In  this  note  an  error  has  occurred 
by  the  substitution  of  the  word  post  for  ante,  in  the  second  paragraph,  which 
the  reader  is  recpiested  to  correct. 

This  edition  contains  a  modification  of  the  note  to  the  case  of  Van  Ankin 
v.  West/all,  Vol.  I,  p.  21,  note  (1) ;  and  an  addition  to  the  note  (a.  a.),  Vol. 
I.,  p.  88,  denying  the  right  of  a  defendant  to  show  the  immateriality  of  evi- 
dence charged  by  him  to  be  false.  To  the  same  effect  is  note  (1),  Vol.  I, 
p.  99.  The  decision  in  Smith  v.  Ashley,  11  Metcalf,  367,  that  the  publisher 
of  a  newspaper  is  not  liable  tor  the  publication  of  an  article,  the  libellous 
character  of  which  is  unknown  to  him,  is  shown  to  be  erroneous,  Vol.  II., 
p.  34,  note  (1),  and  in  pages  252  and  258  there  are  notes  referring  to  the  code 
rendering  unnecessary  the  allegation  of  extrinsic  facts  to  give  point  to  de- 
famatory words ;  and  to  decision  holding  it  necessary  to  a  perfects  tlefence  in 
an  action  for  a  libel  to  show  not  only  the  truth  of  the  allegations,  but  that  the 
publication  was  made  with  good  ?notivcs  and  for  justifiable  ends. 

This  edition  relieves  the  profession  from  going  over  the  cases  for  the  last  ten 
years,  and  in  that  respect  is  preferable  to  the  former. 

New  York,  9th  August,  1852. 


INTRODUCTION. 


BY   THE    EDITOR. 


In  consequence  of  reiterated  complaints  during  the  last  winter, 
by  the  conductors  of  numerous  public  journals,  of  alleged  erroneous 
doctrines  held  by  our  courts  in  respect  to  the  Law  of  Libel,  the 
editor  of  this  edition  of  Mr.  Starkie's  Treatise,  was  induced  to  look 
into  the  matter.  He  soon  became  satisfied  that  to  obtain  redress 
in  the  cases  in  which  the  decisions  complained  of  had  been  made, 
it  was  only  necessary  that  an  appeal  should  have  been  prosecuted 
to  the  higher  judicial  tribunals,  and  that  the  application  to  the  Leg- 
islature, proposed  by  the  conductors  of  the  press,  to  correct  the  sup- 
posed defects  in  the  law,  was  unnecessary  and  inexpedient.  He 
therefore  contributed  his  mite  to  dissuade  from  legislative  action, 
convinced  that  the  rights  of  individuals,  as  well  as  the  liberty  of  the 
press,  were  sufficiently  protected  by  the  existing  law,  correctly  un- 
derstood and  wisely  administered. 

In  his  investigations  upon  this  occasion,  the  editor  was  forcibly 
struck  with  the  diversitie  (to  use  the  orthography  of  ancient  days,) 
in  the  law  of  libel  as  recognized  in  England  and  as  held  here,  not- 
withstanding we,  as  well  as  England,  profess  to  be  governed  by  the 
common  law  ;  and  it  occurred  to  him  that  the  republication  of  an 
approved  treatise  on  the  subject,  accompanied  with  notes,  inviting 
attention  to  the  differences  alluded  to,  could  not  fail  to  be  interest- 
ing and  instructive — and  the  result  is  the  work  now  submitted  to 
the  profession. 

In  England,  giving  the  name  of  the  author  of  an  oral  slander  at 


20  INTRODUCTION. 

the  time  of  its  repetition,  is  a  perfect  defence  to  an  action.  Strange 
as  it  may  seem,  it  is  unquestionable,  that  at  a  period  as  late  as 
1830,  when  the  last  English  edition  of  Mr.  Starkie's  Treatise  was 
published,  such  was  held  to  be  the  law  in  England.  So  it  was  held 
by  Lord  Kenyon  1796,  by  Lord  Ellenborough  in  1802,  and-  even 
down  to  the  present  day  there  is  no  case  to  be  found  in  the  English 
Reports  overruling  the  former  decisions,  though  in  1829,  Lord 
Chief  Justice  Best  did  enter  a  protestando  against  the  doctrine. 
With  us,  this  doctrine  has  long  since  been  exploded.  (See  note  [I] 
infra,  vol.  I.  p.  340). 

So,  in  England,  suspicions  and  rumors  of  the  guilt  of  a  party  to 
whome  crime  is  imputed,  may  be  given  in  evidence  in  mitigation  of 
damages,  although  the  action  be  brought  for  the  express  purpose  of 
vindicating  the  character  of  the  party  from  the  aspersions  cast  up- 
on him,  resting  upon  no  more  solid  basis  than  suspicion  and  ru- 
mor. Here  this  doctrine  also  has  long  since  been  repudiated.  If, 
indeed,  suspicions  and  rumors  have  done  their  deadly  work,  and 
the  good  character  of  the  party  against  whom  they  were  directed  is 
destroyed,  our  courts  allow  the  general  bad  character  of  a  plaintiff 
in  an  action  of  slander  to  be  shown  in  mitigation  of  damages,  but 
evidence  of  mere  rumors  and  suspicions  is  not  permitted.  (See 
note  [I]  infra,  vol.  II.  p.   96.) 

In  England,  the  doctrine  of  privileged  communications  is  a  vital 
principle  of  the  law  of  slander  ;  whilst  here  it  is  scarcely  known. 
In  England,  no  man  is  punishable  criminally  for  the  publication  of 
his  opinions  upon  any  subjects  whatever,  affecting  the  constitution 
of  the  country,  its  laws,  or  their  administration,  or  the  conduct  of 
public  functionaries  in  the  discharge  of  duties  entrusted  to  them, 
provided  the  communications  are  sincere  and  honest  and  not  malici- 
ous— the  character  of  the  publication  to  be  judged  of  by  a  jury  not 
by  the  court.  Nor  is  he  liable  civilly,  in  an  action  for  damages  for 
any  communication  made  by  him  affecting  the  character  or  the  cred- 
it of  another,  though  it  be  false  or  erroneous,  provided  it  be  made 
on  an  occasion  in  which  his  own  interests  or  the  interests  or  the 
business,  or  even  the  convenience  of  others  require  it  to  be  made, 


INTRODUCTION.  21 

and  that  he  act  in  good  faith,  without  malice — the  bona  /We.?  being 
presumed,  until  the  contrary  is  shown  by  proof.  Here  an  action 
has  been  sustained  against  the  chairman  of  a  political  .meeting  for 
permitting  his  name  to  be  affixed  to  an  address  to  the  elect 
the  state,  canvassing  the  conduct,  qualifications  and  character  of  a 
candidate  for  office  who  solicited  their  suffrages,  although  the  ad- 
dress  contained  do  charge,  which  if  orally  made  would  have  been 
actionable,  and  no  proof  of  express  or  actual  malice  was  given  ; 
(see  note  [1]  page  L94,  Vol.  I.  infra,)  ;  and  so  an  action  has  been 
held  to  lie  for  words  affecting  the  credit  of  a  third  person,  although 
spoken  in  answer  to  an  inquiry,  on  a  subject  in  which  the  party 
making  the  inquiry  had  an  interest,  and  no  proof  of  express  malice 
was  given  ;  but  on  the  contrary  was  rebutted  by  the  circumstances 
of  the  case.     (See  Sewall  v.  Callin,  3  Wendell  201.) 

In  this  country  but  little  other  effect  is  given  to  the  general  issue 
in  the  action  of  slander,  than  to  compel  the  plaintiff  to  prove  the 
facts  alleged  in  his  declaration,  essential  in  law  to  his  right  to  re- 
cover ;  whilst  in  England,  the  plea  of  the  general  issue  is  of  such 
force,  that  under  it  the  defendant,  with  the  exception  of  the  defence 
arising  from  a  justification  of  the  charges  made  and  from  the  pro- 
tection afforded  by  the  statute  of  /imitations,  may  avail  himself  of 
any  defence  existing  to  the  action.*  He  may  under  it,  prove  that 
the  words  were  not  spoken  or  written  in  the  calumnious  sense  alleg- 
ed in  the  declaration  ;  that  the  occasion  and  circumstances  of  the 
speaking  or  writing  were  such  as  cither  absolute///  to  exonerate  him 
from  liability  to  an  action  without  regard  to  the  motive  or  inten- 
tion with  which  the  words  were  uttered  or  written  ;  or  condition- 
ally, that  is,  provided  it  be  not  proved  that  he  was  actuated  by  ex- 
press or  actual  malice,  as  contra-distinguished  from  that  malice 
which  is  implied  from  the  falsity  of  the  charge.  In  fine,  as  the 
plaintiff  in  an  action  of  slander,  like  the  plaintiff  in  every  other  ac- 

•Whether  to  the  two  defeudes  which  must  be  specially  pleaded  to  render  them  availa- 
ble, should  not  be  added  a  third  quere  ?  The  defence  referred  to,  is  that  set  up  by  a 
party  that  the  publication  charged  to  be  libellous,  18  a  true  and  fair  account  of  a  judi- 
cial or  parliamentary  proceeding.  Whether  such  defence  must  be  specially  pleaded  is 
an  unsettled  question.     (See  note  [1]  infra  vol.  I.  p.  456.) 

D 


22  INTRODUCTION. 

lion  on  the  cane,  must  depend  on  the  equity  and  justice  of  his  case 
for  his  recovery,  so  whatever  will  in  equity  and  conscience  prevent 
a  recovery,  may,  with  the  exceptions  above  stated,  be  given  in  evi- 
dence under  the  general  issue  and  need  not,  be  specially  pleaded. 
(See  infra,  Vol.  I.  p.  455,  note  [1]  ;  p.  456,  note  [1];  p.  325,  note 
[1]  ;  and  p.  208,  note. [1].) 

The  plea  of  the  general  issue,  however,  as  before  observed,  will 
not  avail  in  all  cases.  If  the  defendant  intends  to  give  evidence  of 
the  truth  of  the  publication,  he  must  interpose  a  plea  of  justification. 
This  plea  is  usually  put  in  where  the  defendant  undertakes  to  prove 
the  truth  of  the  charge  of  a  crime  imputed  to  the  plaintiff,  as  is 
manifest  as  well  from  adjudged  cases  as  from  the  rules  of  pleading, 
requiring  the  same  degree  of  certainty  and  precision  in  a  plea  of 
justification  that  is  demanded  in  an  indictment.  This  plea  is  pro- 
per, also,  in  all  cases  where  specific  charges  other  than  crime  have 
been  made,  affecting  the  plaintiff  in  his  character,  office,  profession 
or  business.  Instead,  however,  of  limiting  its  use  to  cases  in  which 
it  may  properly  be  interposed,  matter  has  been  alleged  in  the  form 
of  a  plea  or  notice  of  justification,  which  is  not  and  in  the  nature  of 
things  cannot  be,  the  subject  of  a  plea  of  justification,  because  not 
presenting  on  its  face  a  full  and  perfect  answer  to  the  declaration  : 
or,  in  other  words,  shewing  a  bar  to  a  recovery ;  and  the  conse- 
quence of  this  vicious  mode  of  pleading  and  of  the  adjudications  of 
the  courts  growing  out  of  it,  has  been  to  involve  the  law  of  libels  as 
it  prevails  in  the  state  of  New-York,  in  such  doubt  and  uncertainty 
that  by  many,  and  especially  those  who  have  suffered  from  the  er- 
rors of  the  courts,  it  was  supposed  that  the  only  mode  of  restoring 
the  good  old  common  law  was  by  legislative  interference.  The  evils 
alluded  to  happen  in  this  wise  :  A  defendant  in  an  action  of  slander 
joins  with  the  plea  of  not  guilty  a  notice  of  justification  setting 
forth  certain  facts  and  circumstances  which  he  intends  to  offer  in 
evidence  on  the  trial  of  the  cause  in  bar  of  a  recovery.  The  facts 
and  circumutances  thus  stated  may  be  fit  and  proper  to  be  given  in 
evidence  under  the  general  issue,  and  if  not  rebutted  by  proof  of 
express  or  actual  malice,  may  authorize  a  verdict  for  the  defendant ; 
but  on  their  face  enough  is  not  presented  to  raise  a  bar  to  a  recov- 


INTRODUCTION.  23 

ery.     Again  :  the  defendant  pleads  that  the   publication  alleged  to 

be  libellous  is  a  letter  written  by  him  in  answer  to  an  inquiry  as  to 
the  character  of  the  plaintiff  as  a  servant.  This  would  be  a  good 
and  perfect  defence  to  the  action  if  not  rebutted  by  proof  of  malice  ; 
but  the  matter  thus  set  up  is  not  the  proper  subject  of  a  Bpecial 
plea,  because,  to  render  the  plea  a  full  answer  to  the  declaration, 
it  would  be  necessary  to  negative  the  existence  of  malice,  which 
cannot  be  done  ;  for  if  done,  such  averment  would  render  the  plea 
demurable,  as  it  would  both  deny  that  which  the  plaintiff  would  be 
bound  to  prove  under  the  general  issue,  and  would  confess  and 
avoid.  Or  the  defendant  sets  forth  in  a  notice  of  justification  that 
the  publication  alleged  to  be  libellous  is  a  criticism  upon  a  literary 
work,  and  that  upon  the  trial  of  the  cause  he  will  produce  in  evi- 
dence the  work  criticised  by  him,  and  insist  that  the  severity  of  re- 
mark complained  of  as  libellous  is  fully  warranted  by  the  nature  of 
the  work  reviewed,  or  the  principles  advocated  by  the  author. 
The  facts  thus  stated,  if  proved  under  the  plea  of  the  general  i 
might  constitute  a  good  and  perfect  bar  to  a  recovery,  provided 
the  defendant  had  not  exceeded  the  bounds  of  fair  criticism,  and 
had  not  been  actuated  by  malicious  motives ;  but  they  would  not  in 
themselves  present  a  bar  to  a  recovery.  When  a  defendant  who 
has  interposed  such  plea  or  notice  offers  at  the  trial  to  verify  the 
same  by  proof,  he  is  met  by  the  objection  that  the  facts  offered  to 
be  proved,  do  not  constitute  a  justification  ;  and  the  judge  sustains 
the  objection,  and  rightly  too.  The  defendant  then  offers  to  prove 
the  truth  of  the  facts  in  mitigation  of  damages,  and  the  judge  re- 
fuses to  receive  the  evidence  either  on  the  ground  that  the  defend- 
ant having  pleaded  a  justification  and  failed  to  verify  his  plea,  is 
not  entitled  to  give  evidence  in  mitigation  ;  or  that  the  facts  tend 
to  establish  the  truth  of  the  charge,  and  therefore  cannot  be  given 
in  evidence  under  the  general  issue.  Thus  the  evidence  being  reject- 
ed both  in  justification  and  in  mitigation  the  defendant  is"  cast  a 
victim  bound  hand  and  foot  on  the  altar  of  justice,  and  the  jury 
hood-winked  and  in  total  ignorance  of  the  occasion  and  circumstan- 
ces of  the  speaking  of  the  words  or  publishing  of  the  libel,  are  re- 


24  INTRODUCTION. 

quired  to  pronounce  a  verdict,  at  the  same  time  being  instructed 
that  the  only  questions  for  them  to  pass  upon  are :  1.  "Whether 
the  defendant  is  the  author  or  publisher  of  the  slander,  and  2.  The 
amount  of  damages  to  be  awarded  to  the  plaintiff. 

That  these  are  not  imaginary  cases,  will  be  seen  by  reference  to 
the  adjudications  of  the  courts.     Turritt  v.  Dolloway,  17  Wendell 
42G,  was  an  action  for  a  libel.     The  publication  stated  that  the 
plaintiff,  then  a  candidate  for  the  office  of  member  of  Congress,  did 
about  1st  March,  1830,  put  his  official  signature  as  first  judge  of 
the  county  of  Oswego,  to  a  paper  purporting  to  be  an  affidavit, 
certifying  under  his  hand  that  the  person  who  signed  it  was  duly 
sworn,  when  in  truth  he  was  not  sworn.     It  further  represented 
that  such  paper  was  intended  and  used  for  the  purpose  of  prevent- 
ing the  re-appointment  of  the  then  collector  of  the  customs  for  the 
port  of  Oswego  ;  that  the  plaintiff  had  made  himself,  secretly  as  he 
supposed,  busy  in  concerting  measures  to  produce  that  result,  and 
concluded  with  an  appeal  to  the  public  in  these  words,  "  We  leave 
the  .public  to  judge  under  the  circumstances,  whether  Judge  Tur- 
rill  has  not  committed  a  gross  violation  of  his  oath  of  office,  for  the 
purpose  of  ruining  a  man  whom  he  has  long  endeavored  to  injure, 
although  he  belongs  to  the  same  political  party  with  himself?" 
The  defendant  pleaded  the  general  issue,  and  accompanied  the  plea 
with  a  notice,  that  on  the  trial  of  the  cause,  he  would  prove  that 
the   plaintiff  did  affix  his  official   signature  as  first  judge  of  the 
county  courts  of  Oswego,  to  a  statement  in  writing  purporting  to  be 
an  affidavit,  made  by  one  Matthew  McNair,  certifying  that  McNair 
had  been  duly  sworn  to  the  truth  of  the  facts  set  forth  in  the  state- 
ment, when  in  fact  he  had  not  been  sworn  ;  that  the  statement  was 
intended  and  used  for  the  purpose  of  preventing  the  re-appoint- 
ment of  John  Grant,  jun.,  then  collector  of  the  customs  of  the  port 
of  Oswego  ;  that  the  plaintiff  at  the  time  of  so  affixing  his  signa- 
ture, and  before  and  since  made  himself  secretly  busy  in  concerting 
measures  to  prevent  the  re-appointment  of  Grant,  and  had  for  a 
long  time  endeavored  to  injure  Grant,  although  he  belonged  to  the 
same   political   party    with    himself.      That   the   plaintiff  at   the 


INTRODUCTION. 

time,   <fcc.  was  a  candidate  for  the  office  of  a  member  of  congress, 
and  that  the   publication  was  made  to  inform   the  electors  of  the 
congressional  district  of  the  facta  detailed  therein  ;  and  that  all  the 
matters  alleged  in  the  declaration  to  be  Libellous,  were  true.     The 
issue  thus  joined  was  brought  to  trial,  and  the  defendant  provnl 
that  a  paper  in  tin:   form   of  an  affidavit   was  drawn  up  about  1st 
March,  1830,  relating  to  some  smuggling  transaction  which  ought 
not  to  have  escaped  the  vigilance  of  the  collector  of  the  customs  at 
Oswego;  thai   SicNair  named  in  the  paper  as  the  deponent, showed 
it  to  the   plaintiff  who   told  him  to   sign   it,  which   he   did,  and  the 
plaintiff  then  put  the  jurat  to  it,  and  signed  it  officially  as  sworn  to, 
although  no  oath  was  administered  to  McNair ;  and  that  the  paper 
thus  certified,  was  forwarded  to  "Washington  to  be  used  in  prevent- 
ing the   re-appointment  of  the  collector.     The   circuit  Judge  in- 
structed the  jury  that  if  the  publication  only  charged  the  plaintiff 
with  inadvertence  or  mistake,  he  would  not  be  entitled  to  recover; 
but  if  it  charged  official  corruption,  the  defendant  wa3  bound  to 
prove  the  plaintiff  guilty  of  corruption,  and.  proof  of  mistake  or  in- 
advertence, would,  in  such  case,  be  no    justification.      The  jury 
found  for  the  defendant,  and  a  new  trial  was  ordered  by  the  Su- 
preme Court,  on  the  ground  that  the  charge  to  the  jury  was  erro- 
neous.    The  judgment  of  the  court  was  pronounced  by  Bronson  J. 
who  pronounced  the  publication  to  be  libellous,  and  said  the  judge 
should  have  so  instructed  the  jury,  and  that  there  was  no  ground 
for  leaving  the  question  to  the  jury  as  one  of  mere  mistake  or  in- 
advertence.    The  cause  was   tried  a  second  time  before  the  Jlon. 
Philo  Grimly   one  of  the  circuit  judges.     After   proof  of  publi- 
cation, the  defendant  offered  to    verify  the  facts  and  circumstances 
specified  in  the  notice  subjoined  to  the  plea;  to  the  admission  of 
which  evidence  the  plaintiff  objected,  on  the  ground  of  the  insuffi- 
ciency of  the  notice,  and  that  the  facts  stated  in  it  did  not  amount 
to  a  justification  of  the  charge:  which  objection  was  sustained  by 
the  circuit  judge,  and  the  evidence  rejected.     The  judge  thereupon 
instructed  the  jury  that  the  publication  amounted  to  an  unequivo- 
cal charge  of  official  corruption  :  that  the   Supreme  Court  had  de- 


26  INTRODUCTION. 

termined  the  paper  to  be  libellous  in  its  character,  and  it  would  be 
their  duty  so  to  consider  it;  that  the  only  other  point  necessary  to 
be  considered,  was  whether  the  defendant  had  been  guilty  of  pub- 
lishing the  libel,  and  after  some  remarks  on  the  subject  of  damages, 
submitted  the  case  to  the  jury,  who  found  a  verdict  for  the  plaintiff 
with  $800  damages.  The  defendant  now  asked  for  a  new  trial, 
which  was  denied,  the  court  holding  that  the  notice  did  not  amount 
to  a  justification,  and  that  the  cause  had  been  tried  in  conformity 
to  the  principles  laid  down  on  the  former  motion.  See  26  Wen- 
dell, 383  to  387.  This  case  fully  illustrates  the  consequences  re- 
sulting from  this  vicious  mode  of  pleading,  and  the  adjudications  of 
the  courts  growing  out  of  it.  The  defendant  published  a  hand-bill 
in  reference  to  the  conduct  of  the  plaintiff,  then  a  candidate  for  an 
elective  office,  stating  certain  facts  and  appealing  to  the  public  to 
judge  under  the  circumstances,  whether  the  plaintiff  had  not  com- 
mitted a  gross  violation  of  his  oath  of  office.  If  the  facts  were  as 
stated  in  the  publication,  the  defendant  had  an  unquestionable  right 
to  publish  them,  for  no  man  is  liable  in  a  civil  action  for  speaking 
or  printing  the  truth.  (See  infra,  vol.  I.  p.  235,  note  [1]  ;  p.  233, 
note  [1]).  The  only  question  was  as  to  that  portion  of  the  publi- 
cation in  which  the  appeal  is  made.  On  the  part  of  the  plaintiff  it 
might  have  been  said  that  it  was  equivalent  to  a  distinct  and  sub- 
stantive charge  of  official  misconduct;  whilst  on  the  part  of  the  de- 
fendant it  might  have  been  insisted  that  the  appeal  was  a  mere  in- 
ference from  or  commentary  upon  the  facts  before  stated,  and 
whether  the  one  or  the  other,  was  a  proper  question  to  submit  to 
the  jury.  These,  it  will  be  perceived,  were  questions  of  fact  to 
be  determined  by  the  jury,  and  not  questions  of  law,  to  be  decided 
by  the  court ;  and  to  enable  the  jury  to  pass  upon  them  understand- 
ingly,  it  was  indispensable  that  they  should  know  the  facts  of  the 
case  ;  that  they  should  know  whether  the  plaintiff  did  affix  a  jurat 
to  a  paper  purporting  to  be  an  affidavit  not  sworn  to ;  the  use  to 
which  the  pretended  affidavit  was  put ;  and  the  state  of  feeling  of 
the  plaintiff  towards  the  defendant,  whether  inimical  or  otherwise. 
Without  such  evidence  the  jury  could  not  pass  upon  the  questions, 


INTRODUCTION.  27 

and  therefore  every  principle  of  justice  demanded  that  the  defend- 
ant should  have  the  benefit  of  the  testimony.  Bow,  then,  were 
the  facts,  to  be  brought  before  the  jury  ?  They  could  not  be  set  up 
in  bar  in  a.  plea  or  notice  of  justification)  for  they  did  not  in  them- 
selves constitute  a  bar;  they  merely  presented  a  case  which  might 
or  might  not  be  pronounced  a  good  defence  by  a  jury  :  and  the  only 
mode  of  bringing  the  evidence  to  the  knowledge  of  the  jury  was  to 
adduce  it  under  the  general  issue.  The  judge,  therefore,  rightly 
decided  that  the  facts  set  forth  in  the  notice  did  not  amount  to  a 
justification;  but  he  Bhould  have  received  the  evidence  so  as  to 
enable  the  jury  to  pass  upon  the  question  whether  the  defendant 
was  warranted  in  making  the  appeal  to  the  public,  which  had  been 
made  by  him  to  determine  under  the  circumstances  of  the  case, 
whether  the  plaintiff  had  not  been  guilty  of  a  violation  of  his  oath 
of  office.  And  in  case  they  should  find  against  the  defendant  upon 
that  question,  then  to  give  such  consideration  to  the  testimony  as  in 
their  judgment  it  was  entitled  to,  in  assessing  the  damages  to  be 
awarded  to  the  plaintiff.  In  cither  point  of  view  the  testimony 
was  most  important  (see  infra  vol.  I.  p.  314,  note  [1]  ;)  and  yet  it 
was  wholly  excluded.  The  judgment  of  the  supreme  court  in  this 
case  was  reversed  in  the  court  for  the  correction  of  errors.  See 
26  Wendell,  383.  No  resolution  was  adopted  expressing  the 
grounds  of  the  reversal ;  but  from  the  opinions  delivered,  it  is  pre- 
sumable that  the  judgment  was  reversed,  because  the  case  had  not 
been  so  submitted  as  to  enable  the  jury  instead  of  the  court,  to  pass 
upon  the  question  of  the  defendant's  liability. 

The  case  of  Cooper  v.  Barber^  24  Wendell  105,  was  an  action 
for  a  libel  alleged  to  have  been  published  by  the  defendant,  the 
editor  of  a  newspaper  called  the  Otsego  Republican.  The  libel 
commences  in  these  word-:  From  THE  Chenango  TELEGRAPH,  J. 
Fenimore  Cooper.  This  gentleman  (meaning  the  said  plaintiff,) 
not  satisfied  with  having  drawn  down  upon  his  head  universal  con- 
tempt from  abroad,  (meaning  Europe,)  lias  done  the  same  thing  for 
himself  at  Oooperstown,  where  he  resides;"  and  then  proceeds  to 
give  an  account  of  a  controversy,  which  had  arisen  between  the 


28  INTRODUCTION. 

plaintiff  and  certain  citizens  of  Cooperstown,  relative  to  a  tongue 
of  land  projecting  into  Otsego  Lake,  called  Three  Mile  Point :  stat- 
ing in  substance  that  the  citizens  of  Cooperstown  had  always  been 
in  the  habit  of  visiting  the  point  during  the  summer  months  for  re- 
creation and  pleasure  ;  and  that  latterly  the  plaintiff  had  forbidden 
resort  to  it  under  pain  of  prosecution  ;  that  the  citizens  had  a  meet- 
ing ;  that  speeches  were  made  and  resolutions  passed  that  they 
would  continue  to  visit  the  point,  and  bidding  defiance  to  the  plain- 
tiff. Then  followed  comments,  not  of  a  very  courteous  character, 
but  still  not  so  offensive  as  to  induce  the  plaintiff  to  make  them  a 
particular  subject  of  complaint  in  the  points  presented  on  the  argu- 
ment of  the  case ;  the  principal  grievance  pointed  out  being  the 
first  paragraph,  referring  to  his  character  abroad.  Then  succeeded 
the  remarks  of  the  defendant,  'setting  forth  the  grounds  of  the  claim 
of  the  villagers,  to  visit  the  point,  containing  nothing  libellous,  un- 
less a  professed  desire  to  prevent  '  a  universal  prejudice  which  ap- 
peared to  be  springing  up  against  the  plaintiff,'  may  be  deemed  ironi- 
cal, and  therefore  slanderous.  The  defendant  pleaded  the  general 
issue,  and  subjoined  a  notice  that  on  the  trial  of  the  cause,  he  would 
prove  (inter  alia)  that  the  inhabitants  of  Cooperstown  had,  for  a 
number  of  years,  been  in  the  habit  of  visiting  the  point  for  recrea- 
tion and  pleasure  without  objection,  until  the  appearance  of  the 
plaintiff's  notice  forbidding  them  to  do  so ;  that  they  had  erected  a 
house  on  the  point,  and  taken  care  of  it  and  of  the  trees  and  shrub- 
bery, and  were  in  the  daily  occupation  of  it  with  the  knowledge  and 
consent  of  the  owners ;  that  it  was  generally  understood  that  the 
father  of  the  plaintiff,  former  owner  of  the  point,  gave  permission 
to  the  inhabitants  to  use,  occupy  and  enjoy  it,  and  that  it  was  his 
intention,  and  of  those  claiming  title  under  him,  except  the  plaintiff, 
that  they  should  continue  to  do  so  without  molestation.  After  proof 
of  the  publication,  the  judge  remarked  that  he  was  satisfied  that  the 
matters  set  forth  in  the  defendant's  notice  did  not  amount  to  a  jus- 
tification, and  that  they  were  irrelevant;  and  that  he  would,  with- 
out waiting  for  an  application  for  that  purpose,  exclude  evidence  of 
those  matters.     The  defendant's  counsel  then  offered  to  prove  the 


INTRODUCTION.  29 

facts  set  forth  in  the  notice  in  mitigation  of  damages,  but  the  judge 
decided  that  the  evidence  was  inadmissible  for  that  purpose  also. 
Subsequently  the  defendant  by  his  counsel,  offered  to  prove  that 
every  fact  stated  by  him  in  his  comments  was  true ;  but  the  judge 
refused  to  receive  the  testimony.     The  jury  found  for  the  plaintiff 
with  $400  damages.     The  defendant  applied  for  a  new  trial,  which 
was  refused.     BBONSON,  J.  who  delivered  the  judgment  of  the  court, 
concurred  with  the  Circuit  Judge  that  the  facts  set  forth  in  the  no- 
tice did  not  amount  to  a  justification,  and  held  that  evidence  of  such 
facts  was  inadmissible  as  a  bar  to  the  action,  because  the  justification 
was  not  so  broad  as  the  imputation  upon  the  plaintiff's  character; 
and  was  not  proper  evidence  in  mitigation  of  damages,  for  the 
reason  that  so  far  as  it  Avent,  it  tended  to  prove  the  charge  well 
founded.     Here  again  it  will  be  observed  that  the  defendant  at- 
tempted to  plead  in  bar  of  a  recovery,  matter  which  was  not  the  sub- 
ject of  a  plea  of  justification,  indeed  had  no  pretence  to  it,  and  yet 
it  was  solemnly  decided  because  the  justification  (as  it  was  called,) 
was  not  so  broad  as  the  imputation  upon  the  plaintiff's  character, 
the  evidence  was  inadmissible ;  and  it  was  also  held  that  the  evi- 
dence was  not  proper  in  mitigation,  for  the  reason  that  so  far  as 
it  went,  it  tended  to  prove  the  charge  well  founded  ;  although  it  had 
been  decided  that  the  facts  set  forth  in  the  notice  did  not  amount 
to  a  justification — and  therefore  there  could  be  no  danger  of  the 
jury  being  improperly  influenced  and  induced  to  render  a  verdict 
for  the  defendant,  who  admitted  that  there  must  be  a  verdict  against 
him,  and  only  asked  that  the  occasion  and  circumstances  under  which 
the    publication   was   made,  might  be  taken  into  consideration  in 
mitigation  of  damages.     If  the  views  which  have  already  been  ad- 
vanced in  reference  to  the  questions  proper  to  be  submitted  to  a  jury 
in  actions  for  libels  founded  on  publications  of  this  character  be  cor- 
rect, instead  of  the  disposition  which  was  made  of  this  case,  a  new 
trial  would  have  been  granted,  with  directions  that  the  evidence  of- 
fered should  be  received,  so  that  the  question  might  be  submitted  to 
the  jury,  whether  the  comments  of  the  editor  of  the  Telegraph  re- 
published by  the  defendant,  were  or  were  not  warranted  by  the  facts 


30  INTRODUCTION. 

of  the  case ;  and  if  they  should  find  that  they  were  unauthorized, 
then  that  the  facts  might  be  taken  into  consideration  in  assessing 
the  damages  to  be  paid  by  the  defendant ;  for  it  might  have  hap- 
pened, had  the  facts  been  given  in  evidence,  that  the  jury  would  not 
have  felt  it  their  duty  to  render  a  verdict  of  $400  in  favor  of  .the 
plaintiff. 

A  third  case  illustrating  the  injurious  consequences  of  this  vicious 
mode  of  pleading,  and  of  the  erroneous  decisions  growing  out  of  it, 
is  that  of  Cooper  v.  Weed,  Hoffman  and  White,  tried  at  the  Otsego 
Circuit  in  September,  1842,  before  the  Hon.  Philo  Gridley,  one  of 
the  circuit  judges  (MSS.)     This  was  an  action  for  two  separate 
libels,  published  in  the  Evening   Journal,  a  newspaper  printed  in 
Albany,  of  which  Weed  was  the  editor,  and  the  other   defendants, 
were  the  proprietors.     They  were  republications  :  the  first  of  an 
article  from  a  public  journal  called  "  The  New  World,"  and  the 
second  of  an  article  "from  "  The  Buffalo  Commercial  Advertiser." 
The  first  article  spoke  of  a  libel  suit  prosecuted  by  Cooper  against 
Weed  in  which  an  inquest  by  default  had  been  taken,  the  defendant 
not  appearing  at  the  trial,  and  the    damages  of  the  plaintiff  being 
assessed  at  $400.     It  was  said  that  the  cause  of  the   non-appear- 
ance of  the  defendant  at  the  trial   was  the   serious  indisposition 
of  his  wife,  and   the  dangerous  illness   of  his  daughter ;  that  the 
fact   of  the  sickness   of  his  family  was   stated  to   the  judge,  who 
refused  to  interfere,  and  that  then  an   appeal  was  made  to  the 
plaintiff,  by  the  counsel  of  the  defendant,  "  but,"  it  was   said,  "  he 
might  as  well  have  appealed  to  the  reddest  of  the  great  novelist's 
Indians,  when  the  war  paint  was  on  him,  and  the  scalps  of  the  pale 
faces  hung  reeking  at  his  belt."     The  second  article  was  headed 
"  J.  Fenimore  Cooper,"  and  commences  thus  :  "  We  have  never  join- 
ed in  the  cry  against  this  gentleman.     He  has  written  some  very 
foolish  things  ;  has  shown  bad  temper  and  worse  taste  ;  has  made 
himself  ridiculous  by  setting  up  as  the  arbiter  of  the  conventionali- 
ties of  social  life  ;  more  than  all,  has  been  guilty  of  decrying  and 
defying  the  whole  newspaper  press  of  the  country,  and  prosecuting 
sundry  prominent  gentlemen  connected  with  it  for  the  offence  of 


INTRODUCTION.  31 

severely  criticising  some  of  his  late  literary  productions.'  Another 
paragraph  in  this  article  was  in  these  words  :  "  But  the  worst  enemy 
of  Mr.  Cooper  could  not  wish  him  in  a  more  discreditable  position 
than  the  one  in  which  he  is  now  placed  by  his  own  act,  if  the  fol- 
lowing from  the  Courier  and  Enquirer  is  true:  "  Mr.  C.  has  ex- 
hibited a  want  of  manhood  and  feeling  alike  disgraceful  to  him  as  a 
man  and  a  gentleman  !"  The  defendants  pleaded  the  general  issue 
and  subjoined  to  it  a  notice  of  justification^  -ruing  forth  matter 
which  they  would  prove  on  the  trial,  and  insist  upon  in  bar  of  a 
recovery :  As  to  the  first  libel,  that  they  would  prove  that  at  the 
time  the  inquest  was  taken,  the  wife  of  Mr.  Weed  was  sick  and  his 
daughter  dangerously  ill,  and  that  on  that  account  he  did  not  at- 
tend and  defend  the  cause  ;  that  the  reason  of  his  absence  was 
stated  to  the  circuit  judge,  and  he  declining  to  interfere,  an  appeal 
was  made  to  the  humanity  of  the  plaintiff  to  win  mi  the  facts  were 
stated,  but  that  he  refused  to  allow  the  cause  to  be  delayed,  and 
took  an  inquest  by  default.  As  to  the  second  libel,  the  defendants 
gave  notice  that  they  would  prove  that  the  plaintiff  wrote  and  pub- 
lished a  book  entitled  "  Home  as  Found,"  in  and  by  which  he  had 
shown  bad  temper  and  worse  taste  ;  had  made  himself  ridiculous  by- 
setting  up  as  the  arbiter  of  the  conventionalities  of  social  life,  and 
had  been  guilty  of  the  folly  of  decrying  the  whole  newspaper  press 
of  the  country  ;  that  he  had  prosecuted  two  individuals,  viz :  James 
Watson  Webb  and  Thurlow  Weed,  prominent  men  connected  with 
the  newspaper  press  of  the  country,  for  the  offence  of  too  severely 
criticising  some  of  his  late  literary  productions,  to  wit,  "Home  as 
Found,"'  and  had  caused  one  of  them  to  be  indicted  for  the  same 
supposed  offence  ;  that  the  matters  intended  to  be  proved  in  justifi- 
cation of  the  first  libel  would  also  be  given  in  evidence  in  justifica- 
tion of  the  second,  and  thus  it  would  be  insisted  that  the  plaintiff 
had  placed  himself  in  a  position  as  discreditable  as  his  worst  enemy 
could  wish.  On  the  trial  of  the  cause,  after  proof  of  publication 
of  the  alleged  libels,  the  defendants  offered  evidence  to  verity  the 
facts  set  forth  in  the  notice  of  justification  as  to  the  libel  contained 
in  the  first  count  of  the  declaration,  which  evidence  was  objected 
to  as  inadmissible  by  the  counsel  for  the  plaintiff,  on  the  ground 


32  INTRODUCTION. 

that  it  would  not,  if  admitted,  amount  to  a  justification  of  the  libel ; 
the  counsel  insisting  that  the  concluding  sentence  of  the  first  libel 
was  a  distinct  and  substantive  charge  of  inhumanity.  The  counsel 
for  the  defendants  contended  that  the  paragraph  alluded  to  was  a 
mere  inference  from,  or  commentary  upon  the  facts  before  stated, 
and  that  it  was  the  province  of  the  jury  to  determine  whether  it 
was  the  one  ok  the  other,  and  that  if  they  should  come  to  the  conclu- 
sion that  it  was  a  mere  inference  or  commentary,  then  to  say  whether 
it  was  or  was  not  a  fair  inference  or  commentary.  The  judge  de- 
cided the  publication  to  be  libellous,  and  held  the  evidence  inad- 
missible, inasmuch  as  the  facts  offered  to  be  proved  did  not  of  them- 
selves, and  without  any  additional  or  explanatory  facts,  constitute  a 
justification  of  the  libel  upon  any  construction  of  which  it  was  sus- 
ceptible. He  observed  that  he  thought  that  upon  a  true  reading  of 
the  libel,  it  asserted  that  the  appeal  to  Mr.  Cooper  for  a  postpone- 
ment of  the  trial,  was  unsuccessful  because  he  was  a  man  of  great 
inhumanity,  &c,  thus  assigning  his  inhumanity  as  the  cause  of  his 
refusal  to  postpone  the  trial ;  but  if  the  true  construction  was  that 
the  appeal  to  Mr.  Cooper  was  unsuccessful,  and  therefore  he  was  a 
man  of  great  inhumanity  of  disposition,  &c,  thus  making  the 
charge  an  inference  from  or  commentary  upon  the  facts  stated,  it 
was  still  necessary  to  plead  and  prove  such  a  state  of  facts  as 
would  justify  the  charge,  for  if  the  commentary  was  unfair  and  not 
warranted  by  the  facts,  and  was  libellous  in  its  character,  it  became 
the  foundation  of  an  action  of  itself,  and  required  a  justification  as 
broad  as  the  charge  ;  and  that  applying  that  rule  to  the  case  at  bar, 
the  facts  stated  in  the  notice  and  offered  to  be  proved  without  an 
explanation  why  an  affidavit  was  not  produced  to  show  the  sickness 
of  Mr.  Weed's  family,  or  of  any  other  facts  whatever,  clearly  fell 
short  of  justifying  the  grave  charge  contained  in  the  libel.  The 
counsel  for  the  defendants  next  offered  to  prove  the  truth  of  the 
charges  made  in  the  publication  set  forth  in  the  second  count,  and 
accordingly  produced  the  book  entitled  "  Home  as  Found,"  of 
which  the  plaintiff  acknowledged  himself  to  be  the  author,  and 
offered  to  read  certain  portions  of  it  in  proof  of  such  charges, 


INTRODUCTION.  33 

which  the  judge  would  not  permit,  on  the  ground  that  the  notice 
was  insufficient  in  not  specifying  the  particular  portions  of  the 
work  relied  on  to  justify  the  several  and  distinct  charges  attempted 
to  '"•  justified,  and  that  a, general  reference  to  a  book  of  500  | 

was  not  enough  for  such  purpose.  When  the  evidence  was  closed 
the  counsel  for  the  defendant  proposed  to  argue  to  the  jury  the 
question  whether  the  concluding  paragraph  of  the  publication  set 
forth  in  the  first  count  of  the  declaration,  was  a  distinct  charge  of 
inhumanity,  or  a  mere  inference  from  or  commentary  upon  the  facts 
before  stated  :  but  the  judge  ruled  that  he  would  not  allow  it  to  be 
argued  to  the  jury,  that  the  publication  set  forth  in  the  first  count 
of  the  declaration  was  not  libellous  ;  that  it  was  to  be  taken  as 
tied  for  the  purposes  of  that  trial,  that  the  publication  was  libellous 
and  that  there  was  no  justification.  He  however  told  the  counsel 
that  the  attention  of  the  jury  might  be  called  to  any  mitigating  cir- 
cumstances appearing  on  the  face  of  the  publication.  The  judge 
then,  after  the  cause  had  been  summed  up  by  counsel,  charged  the 
jury  that  it  had  been  decided  by  the  court  that  the  action  was  sus- 
tained, and  that  the  libel  was  not  justified  :  and  that  the  only  ques- 
tion for  them  to  pass  upon  was  the  amount  of  damages,  and  that  in 
making  up  their  opinions  in  that  respect,  they  should  regard  the 
facts  legally  before  them  as  evidence  and  none  other.  The  jury 
found  a  verdict  for  the  plaintiff  with  $200  damages. 

Here  again  are  seen  the  pernicious  consequences  of  an  attempt  to 
present  in  a  plea  or  notice  of  justification  matter  of  defence  not  the 
•t  of  a  plea  of  justification.  Matter  constituting  the  proper 
subject  of  such  a  plea  must  on  its  face,  be  a  complete  and  perfect 
bar  to  a  recovery.  Now  it  is  palpable  that  neither  branch  of  the 
notice  of  justification  in  this  case  presents  a  bar.  A.8  to  the  first  li- 
bel, the  defendants  insist  that  they  had  a  lawful  right  to  char 
plaintiff  with  inhumanity  under  the  existing  circumstances  :  Mr. 
Weed's  wife  was  sick,  and  his  daughter  dangerously  ill,  and  he 
could  not  tear  himself  from  his  attendance  upon  them,  and  proceed 
to  the  circuit  to  make  his  defence.  His  counsel  appealed  to  the 
plaintiff  to  permit  the  cause  to  pass ;  but  he  inhumanly  refused.  It 
E 


34  INTRODUCTION. 

is  not  alleged  that  the  plaintiff  knew,  or  that  proof  was  offered  to 
him,  that  the  representations  as  to  the  sickness  in  Mr.  Weed's 
family  were  true  ;  and  without  such  fact  brought  home  to  his  knowl- 
edge, there  was  no  pretence  for  the  charge  of  inhumanity,  as  it  is 
called,  for  it  is  not  usual  for  parties  conducting  angry  suits  of  this 
nature,  to  subject  themselves  to  much  inconvenience  for  the  accom- 
modation of  -their  adversaries,  upon  a  mere  suggestion  of  sickness 
in  the  family  of  one  or  the  other.  Had  it  however  been  alleged  in 
the  notice,  that  due  proof  of  the  sickness  in  Mr.  Weed's  family  had 
been  presented  at  the  time  when  a  postponement  of  the  trial  was 
asked,  still  enough  would  not  have  been  averred  to  have  authorized 
the  judge  to  pronounce  the  facts  sufficient  to  constitute  a  justifica- 
tion. The  matter  set  forth  in  the  notice  proved  under  the  general 
issue  might  have  authorized  the  defendants  to  demand  that  the  ques- 
tion should  be  submitted  to  the  jury  whether  the  paragraph  com- 
plained of  as  libellous  was  or  was  not  a  fair  inference  from,  or  com- 
mentary upon  the  facts  before  stated  ;  but  they  could  not  contend 
with  any  show  of  reason  that  the  facts  themselves  amounted  to  a 
justification.  Had  the  circuit  judge  therefore  decided  that  the  de- 
fence set  up  was  not  the  subject  of  a  plea  or  notice  of  justification, 
his  decision  would  have  been  right ;  but  unfortunately  in  this  case, 
as  in  the  cases  before  cited,  and  others  that  might  be  specified,  it 
was  held  that  the  defence  set  up  was  the  proper  subject  of  a  plea 
of  justification,  but  that  enough  was  not  averred  to  establish  a  jus- 
tification ;  the  judge  intimating  what  he  subsequently  more  fully  ex- 
pressed, that  the  making  of  an  affidavit  of  the  sickness  of  Mr.  Weed's 
family,  and  the  presentment  of  the  same  to  the  plaintiff  should  have 
been  averred  in  the  notice — whereas  had  those  facts  been  averred, 
the  notice  still  would  have  fallen  short  of  shewing  a  case  of  justifi- 
cation. But  though  the  facts  offered  to  be  proved  did  not  amount 
to  a  justification,  they  were  admissible  in  evidence  uuder  the  gener- 
al issue,  and  the  defendants  should  have  been  permitted  to  prove 
them,  to  show  the  occasion  and  circumstances  under  which  the  last 
paragraph  in  the  first  alleged  libel  was  written.  It  may  well  be 
doubted  whether  that  paragraph  contained  any  thing  that  is  libel- 


INTRODUCTION.  ■■■> 

lous  ;  there  is  in  it  no  accusation  of  crime  :  and  in  connection  with 
the  facts  upon  which  it  is  based,  there  is  nothing  which  can  have 
the  slightest  tendency  to  expose  the  plaintiff  to  hatred,  contempt  and 
ignominy,  the  gravamen  alleged  in  the  declaration  ;  but  admitting 
it  to  be  libellous,  the  evidence  should  have  been  received  to  enable 
the  jury  to  pass  upon  the  question  raised  by  the  plaintiff's  counsel, 
viz  :  whether  the  paragraph  constituted  a  distinct  and  substantive 
charge,  or  was  a  mere  inference  from,  or  commentary  upon  the 
facts  before  stated.  If  they  found  it  to  be  an  inference  or  com- 
mentary, then  to  decide  whether  it  was  a  fair  inference  or  com- 
mentary ;  and  if  they  found  it  to  be  a  distinct  and  substantive  charge, 
or  that  the  inference  was  unfair,  then  to  give  such  consideration  to 
the  testimony  in  the  assessment  of  damages,  as  it  was  entitled  to. 
Instead,  however,  of  receiving  the  evidence,  and  thus  submitting  the 
case  to  the  jury,  the  judge  himself  decided  that  the  paragraph  con- 
tained a  distinct  and  substantive  charge  of  inhumanity ;  that  the 
facts  offered  to  be  proved  fell  short  of  establishing  a  justification ; 
that  he  would  not  permit  the  defendant's  counsel  to  address  the  jury 
on  the  question,  whether  the  paragraph  amounted  to  a  substantive 
charge,  or  a  mere  inference  from  preceding  facts  ;  and  finally  told 
the  jury  that  it  had  been  decided  by  the  court  that  the  action  was 
sustained,  that  the  libel  ivas  not  justified,  and  that  the  only  question 
for  them  to  pass  upon  was  the  amount  of  damages.  It  is  worthy  of 
remark  that  the  principle  insisted  upon  here  as  applicable  to  actions 
of  slander  of  this  character,  brought  for  the  publication  of  matter 
which  may  or  may  not  be  libellous,  according  to  the  finding  of  a  jury 
upon  a  previous  question  of  fact,  presented  itself  in  a  shadowy  form 
on  the  trial  of  this  cause  to  the  mental  vision  of  the  learned  judge, 
but  not  with  its  consequences  so  fully  developed  as  to  induce  him  to 
adopt  it  as  the  rule  to  govern  the  case. 

The  ruling  of  the  judge  in  reference  to  the  evidence  offered  to 
prove  the  second  branch  of  the  notice  of  justification,  also  requires 
some  notice.  "  Home  as  Found,"  a  book  written  and  published  by 
the  plaintiff,  was  offered  in  evidence  to  prove  that  the  plaintiff  had 
written  a  great  many  foolish  things ;  had  shown  bad  temper  and 


'36  INTRODUCTION. 

worse  taste  ;  had  made  himself  ridiculous  by  setting  up  as  the  arbi- 
ter of  the  conventionalities  of  social  life,  and  had  defied  and  de- 
cried the  whole  newspaper  press.     The  book  was  rejected  by  the 
judge  on  the  ground  that  the  notice  was  insufficient,  in  not  specify- 
ing the  particular  portions  of  the  work  relied  on  to  justify  the  sev- 
eral and  distinct  charges  made  in  the  publication,  and  that  a  gen- 
eral reference,  to  a  book  of  five  hundred  pages  was  not  enough. 
Here,  again,  it  will  be  observed  that  the  defence  attempted  to  be 
established  was  viewed  by  the  judge  as  matter  of  justification ;  and 
because  the  notice  of  justification  was  not  sufficiently  definite,  or  in 
other  words,  had  not  that  precision  and  certainty  required  in  a  plea 
or  notice  of  justification,  the  evidence  offered  was  rejected.     Here, 
also,  had  the  judge  held  that  the  defence  set  up  was  not  the  subject 
of  a  plea  of  justification,  he  would  have  decided  correctly  ;  but  in- 
stead of  doing  so,  he  held  as  he  had  done  in  relation  to  the  first 
branch  of  the  notice,  that  it  was  the  proper  subject  of  a  plea  of 
justification,' but  that  enough  had  not  been  averred  to  make  out  a 
case  of  justification.     Had  the  specifications  of  the  portions  of  the 
work  relied  upon  as  authorizing  the  charges  made  against  the  plain- 
tiff, been  ever  so  precise  and  certain,  the  judge  would  still  have 
been  right  in  holding  that  the  notice  did  not  on  its  face  raise  a  bar 
to  a  recovery,  as  it  would  not  show  a  case  of  justification  ;  but  he 
erred  in  refusing  to  admit  the  testimony,  as  the  defendants  had  the 
right  to  insist  that  the  publication  alleged  to  be  libellous  was  a  fair 
criticism  upon  "  Home  as  Found,"  and  that  the  question  whether 
it  was  so  or  not,  should  be  submitted  to  a  jury. 

It  sometimes  happens  that  a  publication  alleged  to  be  a  criticism 
upon  a  literary  production,  is  in  fact  a  personal  and  defamatory  at- 
tack upon  the  author  as  a  maw,  and  not  upon  the  author  as  connect- 
ed with  the  work  assumed  to  be  criticised  ;  in  such  case,  the  critic 
loses  the  protection  which  he  would  otherwise  enjoy ;  but  whether 
he  has  abused  the  privilege  of  a  critic  is  a  question  of  fact  to  be 
determined  by  a  jury,  and  not  a  question  of  law  to  be  decided  by 
the  court.  Where  a  defendant,  regardless  of  the  rule  which  Sir 
Edward  Coke,  in  his  reports  termed  '  an  excellent  point  of  learn- 


INTRODUCTION.  37 

ing  in  actions  of  slander,'  "  not  to  demur  although  your  opinion  is 
that  the  plaintiff  has  no  cause  of  action,  but  first  take  advantage  of 
matters  of  fact,  and  leave  matters  of  law  which  always  arise  upon 
the  matters  of  fact,  ad  uUimnm"  interposes  a  demurrer  in  an  ac- 
tion of  slander,  as  was  done  in  the  case  of  Cooper  v.  Stone,  24 
Wendell,  434  ;  the  court  may  legitimately  Bay  whether  the  matter 
alleged  to  be  libellous  is  or  is  not  the  subject  of  an  action  ;  but 
when  the  party  puts  himself  upon  the  country,  even  that  case  ad- 
mits that  the  question  whether  a  publication  be  or  be  not  a  fair  crit- 
icism can  be  settled  only  by  a  jury.*  In  the  case  of  Cooper  v. 
Weed  and  others,  the  defendants  had  put  themselves  upon  the  coun- 
try. The  evidence,  therefore,  should  have  been  received,  and  the 
defendants  permitted  to  read  to  the  jury  such  portions  of  the  book 
as  in  their  judgment  authorized  the  publication  complained  of  as 
libellous.  As  the  question  to  be  submitted  to  the  jury  upon  this 
part  of  the  case,  was  as  to  the  fairness  of  the  criticism,  how  could 
they  pass  upon  it,  unless  the  subject  of  the  alleged  criticism  was 
submitted  to  them  ?  and  in  case  they  should  find  that  the  criticism 
was  unfair  how  could  they  understandingly  assess  the  damages, 
without  seeing  the  work  which  had  been  criticised  ?  for,  though 

*  The  case  of  Cooper  v.  Stone,  was  correctly  decided,  but  it  is  repectfully  suggested, 
not  for  the  true  reason.  The  learned  judge  who  delivered  the  judgment  of  the  court, 
assumes  that  the  demurrer  admits  that  the  defendant  under  the  pretext  of  criticism,  had 
calumniated  the  plaintiff.  "  The  difficulty,"  says  the  judge,  "of  sustaining  this  demurrer, 
lies  in  its  admitting  that  the  plaintiff's  moral  character  had  been  falsely  and  malicious- 
ly assailed."  The  defendant,  and  no  doubt  the  learned  pleader  who  interposed  the  de- 
murrer, must  have  been  greatly  surprised  by  this  annunciation,  for  it  is  not  to  be  pre- 
sumed that  such  an  admission  was  the  object  of  the  demurrer  ;  and,  yet,  as  before  ub- 
served,  the  demurrer  was  properly  over-ruled.  It  was  manifest  from  the  paper  book9, 
that  the  plaintift  meant  to  insist  that  under  the  pretext  of  criticism  the  defendants  had 
maliciously  slandered  him,  and  he  had  an  undoubted  right  to  bring  his  action  and  submit 
the  question  to  a  jury,  whether  the  publication  was  a.  fair  criticism,  or  a  libel  under  the 
pretext  of  a  criticism.  The  publication  contained  matter  which  might  or  might  not  be 
libellous,  according  as  a  jury  should  find  upon  the  question  whether  the  publication  was 
or  was  not  a/air  criticism;  and  that  was  a  question  of  fact  to  be  determined  by  a  jury, 
and  upon  which  the  court  had  no  right  to  pass — indeed,  could  not  understandingly  pass, 
without  an  examination  of  the  work  alleged  to  have  been  criticised:  in  doing  which  they 
would  depart  from  their  appropriate  duties  as  a  court,  and  invade  the  province  of  the 
jury.  As,  therefore,  enough  appeared  to  entitle  the  plaintiff  to  claim  that  his  case  should 
be  submitted  to  a  jury,  the  only  proper  course  was  to  over-rule  the  demurrer  and  send 
the  parties  down  to  trial  at  the  circuit. 

E* 


38  INTRODUCTION. 

they  might  find  for  the   plaintiff,  they  might  consider  the  extenua- 
ting circumstances  such  as  to  require  but  a  nominal  verdict. 

If  the  defendant  fail  in  establishing  a  justification,  or  in  shewing 
that  he  is  protected  from  legal  liability  by  the  occasion  and  circum- 
stances under  which  the  words  were  spoken  or  libel  published,  he 
may  then  adduce  such  evidence  as  may  be  in  his  power  in  mitiga- 
tion of  damages.  The  rule  on  this  subject,  as  laid  down  in  Knobell 
v.  Fuller,  infra  vol.  II,  p.  96,  note  p.  and  Peakc's  Ev.  (by  Norris,) 
App.  xxxii,  is  :  that  in  an  action  of  slander,  a  defendant  may,  in 
mitigation  of  damages,  give  any  evidence  short  of  such  as  would  be 
a  complete  defence  to  the  action  if  specially  pleaded.  It  is  true, 
that  both  in  England  and  here,  objections  have  been  made  to  this 
rule.  It  has  been  said,  that  to  allow  evidence  of  particular  facts 
to  be  adduced  tending  to  show  that  the  plaintiff  was  really  guilty 
of  the  charge  imputed  to  him,  would  be  to  overturn  the  rule  laid 
down  in  Underwood  v.  Parkes,  2  Str.  1200,  viz  :  that  the  truth  of 
the  imputation  should  not  be  given  in  evidence  under  the  general 
issue  even  in  mitigation  of  damages :  and  it  has  been  asked  if  the 
rule  of  Knobell  v.  Fuller  was  adopted,  how  would  it  be  possible  to 
draw  the  line,  and  to  restrain  the  evidence  of facts  tending  to  throw 
suspicion  on  the  plaintiff  within  such  limits  that  it  should  not  pro- 
duce actual  conviction  on  the  minds  of  the  jury;  and  it  has  also 
been  said  that  the  practice  would  be  attended  with  all  the  hardship 
and  inconvenience  which  would  result  from  admitting  a  complete 
justification  under  the  general  issue,  for  the  plaintiff  would  be  equally 
liable  to  surprise,  and  as  little  able  to  meet  the  charge  in  the  one 
case  as  the  other.  So  much  of  the  rule  of  Knobell  v.  Fuller,  as 
permits  the  giving  in  evidence  of  facts  tending  to  throw  suspicion 
upon  the  plaintiff ;  (and  such  probably  is  its  sound  construction,  for 
it  is  the  practice  of  the  courts  of  England  to  receive  such  evidence,) 
it  is  conceded  is  indefensible  ;  (See  note  [1],  vol.  II.  p.  96,  infra)  ; 
but  in  respect  to  the  remainder  of  the  rule,  it  is  submitted  there  is 
no  force  in  the  objection.  The  objection  assumes  that  no  facts  can 
be  proved  in  mitigation  of  damages  but  those  of  which  the  plain- 
tiff has  been  apprised  previous  to  the  trial  of  the  cause,  whereas  in 


INTRODUCTION.  39 

the  action  of  slander  it  is  not  necessary  (as  has  been  before  shewn) 
to  plead  special!//  the  matter  relied  upon  in  defence,  except  when 
the  defendant  intends  to  insist  upon  a  justification  or  the  statute  of 
limitations  ;  and  consequently  any  evidence  which  goes  to    Bh 
that  in  equity  and  good  conscience  the  plaintiff  Is  not  entitled  to  re- 
cover is  admissible  under  the  general  issue.     Formerly  the  truth  of 
the  words  was  given  in  evidence  under  the  general  issae  in  mill 
Hon  of  damages,  but  the  resolution  of  the  judges  in  Underwood  v. 
Partes,  put  an  end   to  that  practice,  and   now    the  truth  of  the 
words  cannot  lie  given  in  evidence   unless  the  facts  relied  upon  arc 
specially  pleaded  in  justification,  and  the  matter  set  up  in  the  plea 
of  course  must  present  a  bar  to  the  action,  or  the  plea  will  be  ad- 
judged ill. 

Besides  :  the  point  of  the  objection  to  the  rule  of  Knobel!  v.  Ful- 
ler is,  that  if  the  evidence  permitted  by  it  be  received,  the  rule  of 
Underwood  v.  Parkes,  will  be  overturned.  The  latter  rule  excludes 
only  facts  tending  to  show  the  truth  of  the  charge  imputed,  and  has 
no  applicability  to  facts  offered  in  mitigation,  when  all  idea  of  justi- 
fication is  abandoned.  The  defendant  therefore  may  in  mitigation 
of  damages  adduce  any  evidence  short  of  what  would  be  a  complete 
defence  to  the  action  if  specially  pleaded,  for  the  purpose  of  enlight- 
ening the  jury,  and  enabling  them  understanding^  to  pronounce  upon 
the  quo  animo  the  publication  was  made,  and  to  fix  the  amount  of 
damages  which  the  plaintiff  ought  to  recover.  Here  again,  a  lion  has 
been  found  in  the  way.  It  has  been  said  that  if  a  defendant  in  an 
action  of  slander  interpose  a  plea  of  justification  and  fail  in  its 
proof,  that  he  shall  not  be  allowed  to  give  any  evidence  in  mitiga- 
tion, other  than  as  to  the  bad  character  of  the  plaintiff;  that  the 
penalty  of  failing  to  prove  a  plea  of  justification,  is  to  deprive  the 
defendant  of  the  right  of  adducing  such  evidence  in  mitigation  of 
damages  under  the  general  issue,  as  would  have  been  admissible 
under  that  plea,  hadnota  plea  of  justification  accompanied  it.-  This 
is  denied  to  be  law.  "  Nihil  quod  est  contra  rationcm  est  lieitum" 
says  Sir  Edward  Coke,  "  for  reason,'*  he  adds,  "  is  the  life  of  the 
law  ;  nay  the  common  law  itself  is  nothing  else  but  reason."     The 


40  INTRODUCTION. 

defendant  is  expressly  authorized  by  statute,  to  join  the  plea  of  the 
general  issue  with  a  special  plea  of  justification  ;  and  it  cannot  be 
that  the  failure  to  prove  one  plea  deprives  him  of  the  benefit  of 
the  other.  It  has  also  been  said  that  the  placing  upon  the  record  a 
plea  of  justification  which  the  defendant  fails  to  prove,  shall,  as  evi- 
dence of  malice,  enhance  the  damages.  Without  stopping  to  con- 
trovert the  soundness  of  this  last  proposition,  which  it  is  supposed 
might  readily  be  done,  and  conceding  it  to  be  evidence  of  malice, 
it  is  sufficient  to  observe  that  nothing  more  can  be  claimed  for  it 
than  the  effect  to  which  it  is  entitled  as  evidence  in  aggravation  ; 
and  if  so,  no  principle  is  better  settled  than  that  evidence  in  aggra- 
vation may  be  met  by  evidence  in  mitigation* 

There  is  no  rule  of  law  which  forbids  a  defendant  in  an  action  of 
slander,  who  has  pleaded  a  justification  and  failed  to  prove  it,  from 
turning  round  and  offering  in  mitigation  of  damages  evidence  which 
neither  proves  the  truth  of  the  charge  imputed  to  the  plaintiff,  or 
has  a  tendency  to  do  so  ;  there  are  dicta  requiring  such  evidence, 
under  such  circumstances,  to  be  rejected,  but  there  is  only  one  de- 
cision, and  that  in  a  nisi  prius  case,  which  has  been  over-ruled  by 
two  other  nisi  prius  cases,  and  is  at  war  with  the  first  principles  of 
the  law  of  slander  and  the  rules  of  pleading.  (See  infra  vol.  II.  p. 
97,  note  [2].)  Every  principle  of  justice  requires  the  admission  of 
such  evidence.  Suppose  a  defendant  undertakes  to  justify  a  charge 
of  robbery,  and  it  turns  out  in  evidence  that  the  plaintiff  attempted 
to  commit  a  robbery  but  was  interrupted  in  its  execution,  so  that, 
technically,  a  robbery  was  not  committed — can  it  be  doubted  but 
that  evidence  of  the  attempt  to  rob  would  be  admissible  in  mitiga- 

*  In  1818  it  was  held  by  the  supreme  court  of  Massachusetts  in  the  case  of  Jackson 
v.  Stetson  and  wife,  15  Mass.  R.  48,  that  a  plea  of  justification  accompanying  the  gene- 
ral  issue,  was  proof  of  the  speaking  of  the  words;  and  it  was  further  held  that  such 
plea  of  justification  if  the  defendant  failed  to  establish  it  by  proof,  was  evidence  of  malice. 
The  first  proposition  was  reiterated  by  the  same  court  in  1822,  in  the  case  of  Alderman 
v.  French,  1  Pick.  1.  The  rules  thus  laid  down  being  considered  a  departure  from  the 
common  law,  the  legislature  of  that  state  in  182G,  passed  an  act  declaring  that  a  plea  of 
juitification  should  not  be  taken  as  evidence  of  the  speaking  of  the  words,  npr  should 
such  plea,  if  the  defendant  failed  to  establish  it,  be  of  itself  proof  of  malice  ;  but  that 
the  jury  should  decide  upon  the  whole  case  whether  the  special  plea  was  or  was  not  put 
in  with  a  malicious  intent.     See  6  Pick.  299. 


INTRODUCTION.  41 

tion,  notwithstanding  the  failure  to  justify.  Again  :  Suppose  (he 
plaintiff  charged  with  having  stolen  the  horse  of  A.  on  a  certain 
day  and  at  a  designated  place,  and  the  defendant  Bhonld  plead  or 
give  notice  that  he  would  prove  the  truth  of  the  charge  ;  and  it 
should  be  proved  that  the  plaintiff  on  the  day  and  at  the  plac 
fied  did  steal  a  cow,  (but  not  a  horse.)  the  property  of  A.  Bere, 
also,  the  defendant  would  fail  in  verifying  his  plea,  and  a  verdict 
■would  be  rendered  against  him  ;  for  it  is  a  settled  rule  of  law  appli- 
cable to  this  action,  that  he  would  justify  a  charge  of  felony,  must 
justify  as  to  the  specific  charge  laid,  and  cannot  set  up  a 
even  of  the  same  crime,  if  distinct  as  to  the  subject  matter  ;  but 
can  there  be  a  doubt  that  the  evidence  of  the  felony  perpetrated  is 
admissible  in  mitigation  of  damages  ?  Unless  it  was  received,  the 
defendant  might  be  saddled  with  a  heavy  verdict ;  and  if  admitted, 
no  jury  could  be  found  who  would  give  a  verdict  for  more  than  a 
nominal  sum.* 

The  only  objection  to  the  evidence  that  can  be  imagined  in  the 
cases  supposed,  is  that  it  might  lead  to  surprise ;  which  would  be 
unanswerable  were  the  matters  offered  in  evidence  such,  that  it  could 
be  pleaded  in  bar,  for  then  it  could  not  be  given  in  evidence  in 
mitigation  of  damages,  under  the  general  issue.  The  evidence  of- 
fered in  the  cases  supposed,  could  not  be  pleaded  in  bar,  and  yet  the 
ends  of  justice  would  imperatively  demand  that  the  defendant  should 
have  the  benefit  of  it  on  the  trial  of  the  cause,  so  that  the  jury 
might  be  properly  guided  in  fixing  the  amount  of  the  recovery.  In 
reference  to  evidence  in  mitigation,  the  objection  of  surprise  docs 
not  lie,  and  accordingly  in  actions  for  criminal  conversation,  and  for 
seduction,  particular  acts  of  vice  and  immorality  on  the  part  of 
either  the  plaintiff  or  his  wife  in  the  first  action,  or  of  the  party 
seduced  in  the  second,  arc  received  without  objection  under  the  plea 
of  not  guilty.  Evidence  of  the  bad  character  of  the  plaintiff  is 
admissible  in  mitigation  of  damages,  bceausc  a  man  of  blemished 
reputation  is  not  entitled  to  that  measure  of  damages  which  would 

*  The  case  of  Andrews  v.  Vanduzer,  11  Johns,  il.  ;;s.,  is  a  Btrikiog  instance  of  the 
effect  of  refusing  evidence  in  mitigation,  after  the  failure  of  the  defendant  to  verify  a 
plea  of  justification. 


42  INTRODUCTION. 

be  awarded  to  a  party  whose  character  is  untarnished.  This  it  is 
supposed  settles  the  principle  of  evidence  in  mitigation.  Whatever 
will  have  a  legitimate  tendency  to  reduce  the  damages  is  admissible 
in  evidence  in  mitigation.  It  has,  however,  been  said  that  evidence 
only  of  general  character,  and  not  of  particular  facts,  affecting  the 
character  of  the  plaintiff,  is  admissible  ;  the  reason  assigned  being, 
that  though  a  plaintiff  may  be  presumed  ready  at  all  times  to  sus- 
tain his  character  by  proof,  the  same  presumption  cannot  be  made 
as  to  every  act  of  his  life.  This  reason  would  exclude  all  evidence 
of  particular  facts,  the  object  of  which  is  the  reduction  of  damages, 
and  is  manifestly  unsound  as  it  comes  in  conflict  with  the  general 
rule  in  relation  to  the  admission  of  evidence  in  mitigation,  viz  :  that 
a  defendant  may  give  any  evidence  for  that  purpose  short  of  what 
would  be  a  complete  defence,  if  specially  pleaded.  It  belongs  to 
the  rule  of  evidence  impeaching  the  character  of  a  witness  for  truth, 
but  has  no  applicablity  to  evidence  impeaching  the  character  of  a 
plaintiff. 

The  author  of  the  following  treatise  holds  the  doctrine,  notwith- 
standing the  provisions  of  the  act  of  32  Geo.  III.  c.  60,  that  on  the 
trial  of  an  issue  upon  an  indictment  for  a  libel,  the  question  whether 
the  matter  published  amounts  to  a  libel,  still  belongs  to  the  court, 
and  not  to  the  jury ;  in  other  words,  that  it  is  a  mere  question  of 
law.  Differing  with  him  in  the  construction  of  that  statute,  and 
inasmuch  as  the  act  of  the  legislature  of  the  state  of  New  York,  of 
1805,  concerning-  libels,  was  passed  in  conformity  with  the  princi- 
ples of  the  act  of  32  Geo.  III.  ch.  60,  upon  the  occasion  of  the  as- 
sertion here,  of  the  principles  which  had  been  advanced  in  England, 
and  led  to  the  passage  of  the  English  act,  it  is  ventured  to  make  a 
few  remarks  expressing  such  dissent,  as  would  be  the  source  of  the 
deepest  mortification  to  the  editor,  to  give  cause  of  suspicion,  by  his 
silence,  that  he  acquiesced  in  the  views  of  the  author  on  this  subject. 

The  act  of  32  Geo.  III.  ch.  60,  was  passed  in  1792,  in  conse- 
quence of  doctrines  held  by  the  Court  of  King's  Bench  on  the  sub- 
ject of  the  law  of  libel,  which  were  deemed  by  the  Parliament  of 
England  an  innovation  upon  the  law  of  the  land  ;  oppressive  and 


INTRODUCTION.  43 

unjust  to  individuals ;  and  destructive  of  the  liberty  of  the  press. 
The  judges,  in  criminal  trials  fur  libel,  when  there  were  no  facts  or 
circumstances  proving  justification  or  excuse  in  point  of  law,  direct, 
ed  the  jury  to  find  the  defendant  guilty,  if  they  were  satisfied  as  to 
the  fact  of  publication,  and  the  truth  of  the  innuendos,  without  pass- 
ing upon  the  question  of  whether  the  publication  was  or  was  not  a 
libel,  but  leaving  it  to  be  determined  by  the  court  as  a  question  of 
law.     The  act  of  32  Geo.  III.  was  accordingly  passed,  whereby  it 
was  declared  and  enacted,  that  a  jury  might  give  a  general  verdict 
of  guilty  or  not  guilty  upon  the  whole  matter  put  in  issue,  upon  the 
trial  of  an  indictment  or  information,  and  should  not  be  required  or 
directed  by  the  court  or  judges  before  whom  the  trial  was  had,  to 
find  the  defendant  guilty  merely  on  the  proof  of  the  publication  by 
the  defendant  of  the  paper  charged  to  be  a  libel  and  of  the  sense 
ascribed  to  it  in  the  indictment  or  information.     The  doctrine  of  the 
King's  Bench  intended  to  be  corrected  by  this  act,  was  asserted  and 
applied  in  the  State  of  New  York  on  the  trial  of  the  indictment  in 
the  case  of  The  People  v.  Croswell  in  July,  1803,  for  an  alleged 
libel  upon  Thomas  Jbpberson;  and  the  Supreme  Court  being  equally 
divided  in  opinion  upon  the  question,  (the  court  temporarily  being 
composed  of  but  four  judges,)  an  act  was  passed  in  1805,  substan- 
tially like  that  of  32  Geo.  III.  ch.  60,  but  broader  in  its  terms  ;  as 
it  not  only,  like  that  act,  declares  the  right  of  the  jury  to  find  a 
general  verdict,  and  forbids  a  direction  to  convict  the  defendant 
merely  on  the  proof  of  the  publication  of  the  matter  charged  to  be 
libellous  and  of  the  sense  ascribed  to  it  in  the  indictment,  but  de- 
clares ami  enacts  that  on  the  trial  of  ever}'  indictment  for  a  libel, 
the  jury  who  shall  try  the  same,  shall  hare  a  right  to  determine  the 
law  and  the  fact,  under  the  direction  of  the  court,  in  like  manner 
as  in  other  criminal  cases.     Mr.  Starkie  insists  that  the  principal 
object  of  the  act  of  32  Geo.  III.,  was  to  remove  the  anomalies  and 
peculiarities  by  which  trials  for  libels  were  distinguished  from  those 
for  other  offences,  and  that  the  legislature  meant  to  leave  the  ques- 
tion whether  the  matter  published  amounted  to  a  libel,  as  before,  a 
question  of  law ;  and  it  is  undeniable  that  he  is  supported  in   this 


U  INTRODUCTION. 

construction  of  the  statute  by  the  opinion  of  the  Court  of  King's 
Bench,  in  the  prosecution  for  a  libel  of  Sir  Francis  Burdett :  the 
judge  presiding  at  the  trial  of  that  case  having  charged  the  jury 
that  they  must  take,  the  law  from  him  as  to  whether  the  publication 
ivas  or  ivas  not  a  libel — in  which  he  was  sustained  by  the  whole 
court,  who  held  that  such  was  the  correct  mode  of  leaving  the  ques- 
tion to  the  jury  under  the  act  of  32  Geo.  III.  This  decision  was 
made  in  1830.  In  1840,  however,  in  the  case  of  Bailis  v.  Lawrence, 
11  Adolph.  and  Ellis  920,  that  act  received  a  construction  more  in 
consonance  with  the  intention  of  the  law-makers,  as  expressed  upon 
its  face,  and  as  evidenced  by  the  history  of  its  enactment.  In  Bailis 
v.  Lawrence,  it  was  held  by  Lord  Denman,  C.  J.,  and  his  opinion 
was  concurred  in  by  the  other  judges,  that  the  object  of  the  act  of 
32  George  III.  was  to  declare  the  law  of  libel  in  criminal  cases  to 
be  the  same  as  it  ivas  in  civil  cases ;  that  the  act  was  applicable 
only  to  criminal  cases,  but  it  was  a  declaratory  act,  and  the  impor- 
tance of  declaring  the  law  existed  only  in  the  case  of  criminal  libels. 
In  civil  cases  a  jury  never  were  required  to  find  a  verdict  against  the 
defendant  in  an  action  for  a  libel,  upon  the  mere  proof  the  publica- 
tion and  of  the  truth  of  the  innuendos  ;  and  if  the  object  of  the 
act,  as  asserted  in  Bailis  v.  Lawrence,  was  to  declare  the  law  of 
libel  in  criminal  cases  to  be  the  same  as  it  was  in  civil  cases,  it  neces- 
sarily follows  that  the  view  taken  of  the  act  in  the  case  against  Sir 
Francis  Burdett,  viz :  that  the  legislature  meant  to  leave  the  ques- 
tion whether  the  matter  published  amounted  to  a  libel  as  before,  a 
question  of  law,  must  be  erroneous.  If  the  King's  Bench,  in  Bailis 
v.  Lawrence,  were  right  in  the  construction  put  upon  the  act  of  32 
George  III.,  there  can  be  no  doubt  that  in  the  state  of  New  York, 
no  court  or  judge,  under  the  act  of  1805,  has  the  power  to  require 
or  direct  a  jury  to  fin«l  a  defendant  on  a  prosecution  for  a  libel, 
guilty,  merely  on  the  proof  of  the  publication  by  the  defendant  of 
the  paper  charged  to  be  a  libel,  and  of  the  sense  ascribed  to  it  in 
the  indictment ;  or  to  instruct  them  that  they  must  lake  the  law  from 
the  court  or  judge,  as  to  whether  the  publication  is  or  is  not  a  libel ; 


INTRODUCTION.  45 

for  here,  by  an  express  enactment  of  the  statute,  it  is  declared,  that 
the  jury  shall  have  the  right  to  determine  the  law  and  the  fact. 

It  is,  however,  of  less  consequence  to  enquire  what  is  the  law  in 
reference  to  criminal  cases  for  libels,  than  to  ascertain  what  it  is 
in  respect  to  civil  cases.     State  Prosecutions  for  libels,  hitherto 
have  been  rare  in  this  country,  and  from  the  nature  of  our  political 
institutions  necessarily  will  be  so  for  the  future.     The  citizens  of  a 
country  boasting  to  be  free,  will  not  and  should  not  endure  to  have 
the  liberty  of  speech  and  of  the  press  restrained  or  controlled  by 
public   prosecutions.      Error  of  opinion,  said   Jefferson,   may   be 
safely  tolerated  where  reason  is  left  free  to  combat  it ;  and  when 
public  opinion  shall  become  so  corrupt  or  besotted  as  not  to  be  in- 
fluenced by  reason,  the  reform  to  be  obtained  by  the  lash  of  the 
law  [will  be  of  small  avail.     Public   prosecutions   for  individual 
wrongs  may  occasionally  occur,  but  they  also  must  be  rare,  or  the 
public  voice  will  be  heard  denouncing  the  prosecutor  who  attempts 
to  enforce  the  penalty  of  fine  and  imprisonment  for  personal  defa- 
mation, when  complete  satisfaction  in  damages  may  be  obtained  in 
a  civil  action.     The  statutes  concerning  libels  in  England  and  here, 
and  the  decisions  under  the  former,  have  been  adverted  to,  more 
for  the  purpose  of  deducing  principles  bearing  upon  civil  cases  or 
private  actions,  than  to  show  what  is  the  law  in  criminal  cases.     In 
Baylis  v.  Lawrence,  besides  what  has  already  been  cited  as  said 
by  the  judges,  it  was  held  that  under  the  act  of  32  Geo.  III.,  the 
presiding  judge  is  not  bound  to  state  his  opinion  to  the  jury  whether 
the  publication  is  or  is  not  libellous ;  and  Lord  Denman,  C.  J.  ob- 
served that  he  had  always  followed  the  practice  adopted  in   that 
case  by  the  presiding  judge,  of  leaving  it  to  the  jury  to  say,  whether 
under   all  the  circumstances  the   publication  amounts  to  a  libel. 
This  was  not  new  doctrine.     Long  previous  to  this  case,  Lord  C. 
J.  Abbott,  in  Fairman  v.  Ives,  5   Barn.  Sc  Aid.  f>42,  submitted  to 
the  jury  the  facts  and  circumstances  attending  a  publication  alleged 
to  be  libellous,  and  left  it  to  them  to  say  whether  it  was  libellous 
or  not,  and  the  jury  having  found;  for  the  defendant,  the  court  re- 
fused to  grant  a  new  trial.     Fairman  v.   Ives  was  tried  in  1822, 
F 


46  INTRODUCTION. 

and  the  same  course  has  since  been  pursued  in  a  great  variety  of 
cases,  cited  in  Ch.  XII.  of  the  first  volume  of  the  body  of  this  work. 
(See  infra  vol.  ii.  p.  356,  note  [1],  and  p.  358,  note  [1].     See 
also  same  vol.  p.  252,  note  [1],  and  p.  258,  note  [1.]) 
Albany,  My  12, 1843. 


Note. — It  is  only  necessary  to  add,  as  a  key  to  the  notes,  that  the  single  letters  (a) , 
(6),  &c,  designate  the  notes  of  the  author  ;  the  double  letters  [a  a],  &c.,  notes  found 
in  the  Appendix  to  the  second  volume  of  the  London  edition,  and  transferred  to  the 
body  of  the  work  for  the  greater  convenience  of  the  reader  ;  and  the  figures  [1] , 
[2],  &c,  designate  the  notes  of  the  editor. 


PRELIMINARY  DISCOURSE. 


Ought  the  faculty  of  communication  by  speech  or  writing  (a) 
to  be  restrained  by  the  municipal  law  ? 

If  so,  then  within  what  limits  ? 

The  former  question  may  readily  be  answered  in  the  affirmative  ; 
to  answer  the  latter  is  to  solve  a  problem  of  difficulty,  but  of  most 
essential  importance  to  the  interests  of  society  ;  it  is  to  discover  and 
establish  such  legal  limits  to  intellectual  intercourse,  as  shall  secure 
to  the  community  the  greatest  quantity  of  good. 

Where  it  is  possible,  consistently  with  natural  justice,  that  is,  with 
the  principles  of  general  expediency,  wholly  to  permit,  or  wholly  to 
prohibit,  the  work  of  legislation  is  easy  ;  it  is  arduous  and  difficult  in 
those  cases  only  where  either  unlimited  license  on  the  one  hand,  or 
total  restraint  on  the  other  would  be  inexpedient,  and,  conse- 
quently, where  it  becomes  necessary  *to  establish  interme-  [  *  ii  ] 
diate  legal  boundaries,  by  means  of  apt  and  definite  limits. 

Legislation,  on  the  present  subject,  is  peculiarly  liable  to  difficul- 
ties of  this  nature  ;  it  is  usually  impracticable,  or  at  least  impolitic, 
cither  wholly  to  sanction  or  wholly  to  forbid  any  particular  class  of 
communications  on  any  matters  whatsoever,  and,  consequently,  the 
question  arises,  how  shall  the  restraining  law  be  framed,  so  as,  with- 
out wholly  excluding  either  of  two  or  more  conflicting  mischiefs,  to 
reduce  the  aggregate  of  evil  to  its  minimum.  To  place  a  bridle  on 
men's  tongues,  so  that  they  be  restrained  from  calumny,  without  lay- 
ing irksome  fetters  on  the  ordinary  communications  of  society,  and 
to  curb  the  licentiousness,  without,  at  the  same  time,  cramping  the 
salutary  freedom  of  the  press,  is  one  of  the  most  arduous,  but,  at 
the  same  time,  valuable  achievements  of  legislative  wisdom. 

Little  need  be  observed  as  to  the   importance  of  laws  by  which 

(«)  In  order  to  avo'ul  repetition  in  the  following  pages,  unless  the  context  render  :i 
narrower  meaning  necessary,  the  term  writing  is  to  be  understood  to  include  all  kind.'* 
of  communications,  by  printing  and  painting,  or  any  other  signs  or  symbols  as  well 
as  writing. 

Vol.  I.  1 


ii  PRELIMINARY  DISCOURSE. 

every  man's  conduct  is  to  be  regulated,  not  only  whenever  he  writes, 
but  even  whenever  he  speaks,  or  as  to  the  necessity  for  legislative 
caution,  where  the  mischief  and  inconvenience  which  would  result 
from  even  a  slight  defect,  are  liable  to  indefinite  multiplication  by 
the  constant  application  of  the  law.  It  were  lost  time  to  dwell  on 
minute  errors,  when  considerations  of  a  far  higher  and  more  urgent 
character  demand  attention. 

The  faculty  of  speech,  one  of  the  first  and  noblest  gifts  of  the 
Creator,  designed,  no  doubt,  for  the  expression  of  gratitude  to  the 
Donor,  of  truth  and  good-will  towards  men,  may  be  abused,  for  the 

purposes  of  blasphemy,  fraud,  and  malice. 
[  *iii  ]  *Those  admirable  means  which  have  been  devised  by  hu- 
man ingenuity  (b~)  for  giving  permanency  and  ubiquity  to 
thought,  for  providing  durable  receptacles  to  knowledge  in  which, 
like  a  valuable  treasure,  it  may  be  preserved,  accumulated,  and 
transmitted  to  distant  regions  and  to  all  ages ;  by  the  aid  of  which, 
the  wise  and  the  learned,  though  locally  distant,  may  unite  in  the 
service  of  science,  and  availing  themselves  of  the  labors  of  past  gen- 
erations, accomplish  magnificent  triumphs  in  the  cause  of  reason  and 
of  truth,  to  which  individual  talent  and  exertion  might  have  ever 
proved  unequal,  those  honored  and  splendid  means  to  which  man- 
kind must  trust,  for  the  safe  preservation  of  all  that  is  sacred  and 
valuable  in  their  religion,  their  history,  their  laws,  for  the  security 
of  their  liberty  and  their  possessions,  to  which  they  are  indebted  for  ev- 
ery intellectual  and  refined  enjoyment,  in  short,  for  all  the  blessings 
of  civilized  life  ;  those,  no  doubt,  may  be  fatally  abused  in  further- 
ance of  insiduous  practices  against  the  peace  and  welfare,  or  even 
the  very -existence  of  civil  society.  They  may  be  pervert- 
[  *iv  ]  ed  into  the  means  of  destroying  men's  religious  faith,  *of 
extinguishing  their  sense  of  moral  obligation,  of  ministering 
to  every  evil  passion,  of  fostering  every  base  and  vicious  propensi- 
ty, and  of  actually  accomplishing  every  crime. 

(6)  Some  learned  men  have  labored  to  prove  that  letters  are  not  of  human  inven- 
tion, but  divine  revelation.  Surely,  it  is  more  consistent  with  the  bounty  of  Provi- 
dence to  suppose  that  faculties  were  originally  given  adequate  to  the  discovery ,  than 
that  a  special  interposition  should  be  necessary  for  the  purpose.  Universal  experi- 
ence manifests  the  intention  that  all  discoveiies  and  improvements  in  science  and  in 
art  should  be  worked  out  slowly  and  gradually,  by  means  of  the  ordinary  faculties 
originally  bestowed  upon  our  race. 

It  is  not  difficult,  in  the  absence  of  any  satisfactory  tradition  on  this  subject,  to  form 
probable  conjectures  as  to  the  process  of  improvement,  which  has  led  from  the  depict- 
ing of  rude  resemblances,  to  such  remote  and  admirable  results. 


PRELIMINARY  DISCOURSE.  iv 

Such  being  the  unworthy  purposes  to  which  the  arts  of  writing 
and  of  printing  have  been  so  frequently  misapplied,  it  is  manifestly 
of  the  most  essential  importance  that  Buch  practices  should  lie  re- 
strained by  force  of  the  municipal  law.  The  reasons  for  restraint  are 
rendered  still  more  cogent,  whenever  two  circumstances  concur  :  the 
general  diffusion  of  knowledge,  by  an  extended  system  of  education, 
and  great  facility  of  communication,  by  the  agency  of  the  public 
press.  The  former  of  these  causes  tends  greatly  to  increase  the 
number,  as  well  of  those  who  are  capable  ofoffendingin  this  respect, 
as  of  those  who  are  placed  within  the  sphere  of  their  influence  and 
danger  of  contamination  :  whilst  the  latter  multiplies,  to  a  tre 
dous  extent,  the  facility  of  working  evil  by  unprincipled  and  immor- 
al publications. 

So  long  as  man's  power  of  effecting  mischief  is  limited  to  his  own 
immediate  and  personal  efforts,  however  violent  and  noxious  they 
may  be,  against  the  persons  or  property  of  others,  the  evil  which  he 
works  must  be  of  a  local  and  limited  nature  ;  but  when  it  is  extend- 
ed by  exerting  a  pernicious  and  wicked  influence  over  the  under- 
standings of  mankind,  through  the  medium  of  the  press,  its  power 
is  bounded  neither  by  time  nor  place  ;  any  one  vicious  and  unprin- 
cipled mind  may,  as  it  were,  be  brought  into  contact  with,  and  is 
enabled  to  exercise  its  influence  over  those  of  millions  :  thus 
even  a  single  individual,  *as  if  invested  with  a  kind,  of  mis-  'v  ] 
chievous  ubiquity,  is  enabled  to  disseminate  blasphemy,  se- 
dition, and  immorality  to  the  remotest  borders  of  the  realm,  and 
the  very  mass  of  society  may  thus  be  exposed  to  the  danger  of  con- 
tamination and  corruption. 

The  main  object  of  the  following  Treatise  is  to  trace  the  munici- 
pal provisions  of  the  law  of  England  on  this  important  subject  :  but 
it  may  not  be  without  use,  certainly  not  without  interest,  to  devote 
some  brief  previous  attention  to  the  general  principles  on  which  such 
restraints  may  be  constructed,  and  to  enquire  whether  there  be  any. 
as  it  were,  natural  boundaries  to  be  discerned  by  which  such  com- 
munications ought,  with  a  view  to  the  convenience  and  happiness  of 
society,  to  be  limited.  One  rule  may  prevail  at  Athens  and  another 
at  Rome  ;  partial  variations  are  attributable  to  the  genius  and  tem- 
per of  the  people  (c:),  to  the  political  constitution  under  which  they 

(c)  Soton  being  asked  if  the  laws  he  had  given  to  the  Athenians,  were  the  best,  re- 
plied, "  I  have  given  them  the  best  they  were  able  to  bear."  Montesq.  1.  1'.'.  e. 
21.  Divorce  was  permitted  by  the  Mosaic  law  among  the  Jews  by  reason  of  the 
hardness  of  their  hearts. 


v  PRELIMINARY  DISCOURSE. 

live,  to  their  peculiar  manners  and  habits,  yet  must  the  great  dis- 
tinctions pointed  out  by  reason  and  natural  justice  be  common  to  all 
countries  and  all  ages  (d). 

Such  then  is  the  object  of  preliminary  inquiry  ;  an  occupation,  it 
must  be  confessed,  more  grateful  to  a  lawyer  than  the  tedi- 
[  *vi  ]  ous  detail  of  a  mass  of  Complicated  and  oftentimes  conflict- 
ing decisions,  in  much  the  same  proportion  as  a  casual  visit 
to  foreign  countries,  to  contemplate  at  leisure  their  principles  and 
forms  of  justice,  would  be  more  agreeable  than  the  ordinary  routine 
of  an  English  circuit. 

The  first  question,  that  is,  whether  such  communications  ought  to 
be  regulated  and  restrained  by  any  municipal  laws,  may  then,  it 
seems,  without  the  least  hesitation,  be  answered  in  the  affirmative. 

The  experience  of  all  nations  from  times  of  the  remotest  anti- 
quity, shews  the  necessity  for  such  laws  ;  their  rudiments  are  to  be 
found  in  all  stages  of  civilization,  however  imperfect,  remote  and 
proximate  to  barbarism,  (e)     Though  little  is  known  of  the  laws  of 

(d )  Est  quidem  vera  lex  recta  ratio,  naturae  congruens,  diffusa  in  omnes  constans 
sempiterna, — Nee  erit,  alia  lex  Romse,  alia  Athenis,  alia  nunc,  alia  posthac,  sed  om- 
nes gentes  &  omni  tempore,  una  lex  &  sempiterna  &  immutabilis  continebit  ;  unus- 
qtie  erit  communis  quasi  magister  &  inspector  omnium  deus. — Cic  De  Rep.  ib.  3. 
Apud.  Lact.  lib.  6,  c.  8. 

(e)  So  far  as  it  is  allowable  to  speculate  on  the  growth  of  legislation  according  to 
the  increasing  exigencies  of  mankind,  it  is  probable  that  even  among  the  most  savage 
tribes,  to  impute  the  want  of  skill  or  bravery  would  be  a  reproach  exciting  resent- 
ment and  violence;  the  increase  of  such  attacks  and  reprisals,  attended  as  it  would 
be  by  the  double  inconvenience  of  dissension  amongst  those  who  were  united  for  some 
common  object,  and  weakening  that  force  which  was  destined  for  other  purposes, 
whether  of  aggression  or  defence,  would  first  suggest  the  policy  of  restraining  such 
insults,  and  substituting  legal  redress  for  personal  retaliation  of  affronts. 

Such  laws,  however,  would  be  but  of  slow  growth  and  little  regarded  among 
any  people  whose  principal  business  was  that  of  arms,  and  whose  policy  it  wa9  to 
cherish  a  high  and  daring  spirit,  whilst  a  warrior,  whose  courage  or  honor  was  re- 
flected on,  would  but  reluctantly  delegate  the  duty  of  retribution  to  any  hands  but 
his  own,  conscious  that  his  best  proof  that  the  imputation  was  undeserved,  would  be 
afforded  by  his  mode  of  avenging  such  an  affront. 

In  a  more  peaceful  and  settled  state  of  society,  when  men  had  began  to  pay  def- 
ference  to  civil  authority,  although  the  protection  of  their  persons  and  property 
from  violence  might  be  the  earliest  objects  of  legislative  provision,  yet  would  it 
very  soon  become  necessary  to  make  provisions  against  judicial  perjury  ;  and  as  such 
an  offence,  odious  as  it  must  always  be,  would,  whilst  the  administration  of  justice 
was  rude  and  imperfect,  be  highly  dangerous,  so  is  it  probable  that  the  penalties 
would  be  proportionally  severe.  By  the  ancient  Roman  law  of  the  Twelve  Tables 
on  this  subject,  it  appears  that  a  corrupt  and  malicious  witness  expiated  his  offence 
by  being  thrown  headlong  from  the  Tarpeian  rock,  in  other  respects,  it  is  presum- 
able, that  the  laws  against  defamation  would,  in  all  early  stages  of  civilization,  be 
few  and  simple.    Their  main  object   would  be  the  preservation  of  the  public  peace 


PRELIMINARY  DISCOURSE.  vii 

ancient  Egypt, — the  venerable  territory  at  •onoe  of  science    [  "vii  ] 

and  of  superstition,  yet  is  it  matter  of  moral  certainty  that 
they  were  not  destitute  of  such  restraints. 

by  the  infliction  of  penalties  in  respect  of  oral  defamation  ;  libels  would  be  out  of 
the  question  when  few  could  read,  and  fewer  still  could  write.  Hence  it  is  that 
many  of  the  earliest  laws  which  history  has  transmitted  to  us,  are  of  a  penal  rather 
than  remedial  nature  ;  that  they  prescribe  specific  penalties  or  fines,  rather  than 
damages  proportioned  to   the  real  circ  :  .  and,  as   is   usual   with  early  legislat- 

ors, thit  their  enactments  are  not  general,  but  frequently  limited  and  confined  to 
particular  imputations,  which  were  considered  as  likely  to  produce  violence  and 
outrage. 

By  tbfl  Athenian  laws,  specified  penalties,  which  varied  from  a  fine  of  two  drachmas 
to  500,  were  imposed,  in  respect  of  different  degrees  of  defamation,  some  of  which  were 
specifically  and  expressly  prohibited.  Thus  the  fine  or  Sr/.tj  xicy^yooKi;,  for  asserting 
that  a  soldier  had  thrown  away  his  shield,  amounted  to  500  drachmas.  See  below,  By 
the  law  of  the  Twelve  Tables,  a  specific  fine  was  imposed  on  many  offences,  probably 
including  that  of  datamation,  when  it  fell  within  the  description  of  the  injuria  leviores, 
though  the  punishment  of  fustigation  at  least  was;imposed  on  more  atrocious  calumniators. 
(See  the  observations  on  this  subject,  p.  xxxv.)  And  it  is  observable,  that  though,  in 
later  times,  the  Romans  substituted  an  assessment  of  damages,  estimatio  injuria,  ap- 
portioned to  the  extent  of  the  injury,  for  an  arbitrary  fine,  yet  that  no  distinction  was 
ever  made  by  the  Roman  law,  in  the  description  and  essence  of  the  offence,  between  crim- 
inal and  civil  liability;  whenever  the  offender  was  liable  in  damages  to  the  individual 
calumniated,  he  was  also  subject  to  penal  censures.  To  the  latest  period  of  the  empire, 
civil,  as  well  as  criminal  liability,  depended  princpally,  if  not  entirely,  on  the  ancien- 
and  primitive  notion,  that  personal  contumely  and  insult  was  of  the  essence  of  the  of- 
fence, and  upon  this  principle  it  is  that  the  peculiarities  of  the  Roman  law,  in  respect  of 
libel  chiefly  depend. 

This,  it  will  be  seen,  is  a  circumstance  which  constitutes  a  very  essential  and  char- 
acteristic distinction  between  the  law  of  England  and  that  of  Rome,  and  of  those  coun- 
tries which  have  adopted  the  civil  law:  for  the  law  of  England  regards  criminal  and  civil 
liability,  in  respect  of  calumnious  communications  as  standing  upon  an  entirely  distinct 
foundation;  and  in  the  next  place,  has  from  very  distant  times,  considered  the  tem- 
poral injury  to  a  man's  estate,  and  not  the  contumely  or  insult  of  the  agent,  as  the 
ground  of  compelling  reparation  in  damages. 

According  to  an  ancient  law  of  the  Burgundians,  "Si  quis  alterum  concagatum  clamat 
verit  120  denariis  mnlotetur.  Si  quis  vulpeculam  alterum  clamaverit  vel  leporem  eo- 
dem  modo  mulcteur."  These,  as  is  observed  by  a  learned  writer,  (Barrington  on  the 
Penal  Statutes,)  appear  plainly  to  be  the  laws  of  a  warlike  nation,  in  which  the  calling 
another  by  a  name  which  implied  cunning  or  flight,  rather  thau  courage  or  resistance, 
was  thought  a  heinous  infamy. 

To  a  much  later  and  more  mature  stage  of  civilization  must  those  laws  be  referred 
which  consider  defamation  not  merely  as  an  insult  to  the  feelings  or  dignity,  which  must 
be  repressed  for  the  sake  of  the  public  peace,  but  which  regard  reputation  ns-  a  civil 
right,  from  its  being  intimately  and  inseparably  connected  with  the  acquisition  an  1  -■•- 
cure  enjoyment  of  every  social  right,  dignity,  or  emolument,  and  so  essential:, 
guard  to  every  other  temporal  possession  and  enjoyment  that  to  leave  it  unprotected 
would  be  to  leave  every  man's  property,  liberty,  and  even  life  insecure,  and  the  work  of 
legislation  but  half  completed. 

V 


vii  PRELIMINARY  DISCOURSE. 

[  *viii  ]  _  *The  well  known  fact  that  this  singular  people  erected 
a  tribunal  (/)  for  trying  the  conduct  even  of  their  kings 
after  death  and  of  decreeing  or  denying  the  honors  of  se- 
[  *ix  ]  pulture,  according  to  the  verdict,  *is  in  itself  sufficient  to 
demonstrate  not  only  that  they  fully  understood  and  ap- 
preciated the  value  of  reputation  and  character,  but  also  that  they 
duly  estimated  and  encouraged  the  love  of  reputation  as  a  great  moving 
principle  of  human  conduct ;  and  that  they  possessed  sagacity  sufficient 
to  turn  that  knowledge  practically  to  the  public  account,  by  using  this 
moral  power  in  the  most  forcible  and  advantageous  manner.  There 
is  perhaps  no  other  memorial  extant  of  this  extraordinary  nation  which 
so  strongly  characterizes  their  political  genius  as  does  this  remark- 
able institution  (g-),  which,  however,  has  served  no  other  purpose 
among  those  who  have  copied  largely  from  Egypt  in  other  respects, 
than  to  supply  the  foundation  of  a  well  known  branch  of  pagan  my- 
thology, as  immortal  as  the  epic  poem  in  which  it  is  so  beautifully 
depicted.  The  effect  of  this  custom  among  the  Egyptians  must 
have  been  greatly  heightened  by  its  connection  with  their  super- 
stition, in  respect  of  the  rights  of  sepulture,  and  the  religious  neces- 
sity of  preserving  the  bodies  of  their  dead  in  order  to  their  subse- 
quent reanimation. 

It  is  impossible  to  suppose  that,  whilst  even  after  death,  conduct 
and  reputation  were  the  subject  of  anxious  inquiry,  direct  and  im- 
mediate provision  was  not  also  made  by  the  laws  of  Egypt  for 
securing  and  preserving  the  characters  of  the  living. 

It  is  not,  however,  essential  to  the  present  purpose  to  examine  in 
detail  (/i),  the  provisions  connected  with  the  subject  in  the 
laws  of  Judae  (f),  Greece,  or  Rome,  nations  which  probably  de- 

(/)  Diod.  Sic.  B.  1. 

(g)  I  find  that  M.  Rollin  (Histoire  des  Egyptiens,  73,)  has  characterized  this  custom 
as  one  of  the  most  remarkable  facts  in  ancient  history,  and  he  points  out  a  very  singular 
analogy  in  sacred  history.  The  Israelites  would  not  suffer  those  of  their  kings,  who  had 
lived  wickedly,  to  be  buried  in  the  tombs  of  their  ancestors. 

(h)  For  a  very  able  and  detailed  historical  account  of  the  law  of  libel,  see  Mr.  Holt's 
excellent  work  on  the  subject.     Second  edition,  Book  1,  ch.  1. 

(i)  The  early  denunciations  of  the  Mosaic  law  against  defamation  are  few  and  simple; 
no  specific  punishment,  except  in  an  instance  which  will  presently  be  alluded  to,  was  ap- 
pointed against  calumniators.  There  is,  however,  scarcely  any  offence  which  is  more 
frequently  alluded  to  in  the  psalms  of  David,  or  more  strongly  described  in  the  ener- 
getic and  figurative  language  of  the  east,  than  that  of  slander;  whether  it  be  for  the 
purpose  of  characterizing  the  conduct  of  depraved  and  malicious  men,  of  denouncing 
divine  vengeance  against  them,  or  depicting  the  wretched  and  forlorn  state  of  their  un- 
happy victims;  it  may  be  further  remarked  that  mention  is  seldom  made  of  this  species 


PRELIMINARY  DISCOURSE.  xu 

rived    their   earliest    knowledge   of  jurisprudence    from   [   \\ii  ] 
Egypt;  some  of  their  laws  will  afterwards  require  more 
particular  attention  ;  fur  the  present,  suffice  it  to  observe  that  they 

of  injury,  without  some  expression  which  shows  that  slander  was  meant,  in  its  strict 
sense,  as  implying  a  false  and  deceitful  representation. 

Psalm  5.  Thou  shalt  destroy  them  that  seek  leasing;  the  Lord  will  abhor  both  the 
bloodthirsty  and  deceitful  man. 

10.  His  mouth  is  full  of  cursing,  deceit,  and  fraud;  under  his  tongue,  ungodliness 
and  vanity. 

14.  There  is  none  that  doeth  good,  their  throat  is  an  open  sepulchre,  the  poison  of 
asps  is  under  their  lips,  their  mouth  is  full  of  cursing  and  bitterness,  their  feet  are  swift 
to  shed  blood. 

31.  Let  the  lying  lips  be  put  to  silence  which  cruelly,  disdainfully,  and  despitefully 
speak  aeainst  the  righteous. 

34.  What  man  is  he  that  lusteth  to  live  and  would  fain  see  good  days;  keep  thy 
tongue  from  evil  and  thy  lips  that  they  speak  no  guile. 

35.  False  witnesses  did  rise  up  against  me;  they  laid  to  my  charge  things  that  I 
knew  not;  the  very  abjects  came  against  me  unawares,  making  mouths  at  me  and 
ceased  not.  They  imagine  deceitful  words  against  those  that  are  quiet  in  the  land;  they 
gaped  on  me  with  their  mouths,  and  said,  fie  on  thee!  fie  on  thee!  we  saw  it  with  our 
eyes. 

38.  My  lovers  and  my  neighbours  did  stand  looking  upon  my  trouble  and  my  kins- 
man stood  afar  off :  they  also  that  sought  after  my  life,  laid  snares  for  me.  and  they 
that  went  about  to  do  me  evil,  talked  of  wickedness  and  imagined  mischief  all  the  day 
long. 

52.  Thy  tongue  imagineth  wickedness  and  with  lies  thou  cuttest  like  a  sharp  razor. 
Thou  hast  loved  to  speak  all  words  which  may  do  hurt;  0  thou  false  tongue,  therefore 
shall  God  destroy  thee  for  ever. 

58.  The  ungodly  are  froward  even  from  their  mother's  womb;  es  soon  as  they  are 
born  they  go  astray  and  speak  lies,  they  are  venomous  as  the  poison  of  a  serpent. 

59.  Deliver  me  from  mine  enemies,  0  God!  behold  they  speak  with  their  mouths  and 
swords  are  in  their  lips. 

69.  They  that  sit  in  the  gate  speak  against  me,  and  the  drunkards  make  songs  upon 
me.     See  also  Psalms  101,  102,  120,  140,  &c.  &c. 

The  publication  of  false  reports,  affecting  the  character  of  others,  is  prohibited  by  the 
Mosaic  law,  (Exsd.  sxiii.  1,)  although  no  punishment  is  annexed  to  a  violation  of  the 
law;  whether  that  was  left  to  the  discretion  of  the  judge,  or  no  punishment  whatever 
was  inflicted,  seems  to  be  doubtful,  Is'ce  Michaclis's  Cumin,  on  the  Law  of  Moses,  art. 
221,  s.  2.  The  same  learned  writer  observes,  "this  last  supposition  (i.  e.  of  impunity,) 
prevailed  with  respect  to  the  greater  number  of  extra-judicial  offences  during  the  in- 
fancy of  nations,  which  approaches  nearly  of  barbarism  and  lawlest 
wherein  mere  verbal  attacks  on  reputation  are  not  so  highly  estimated,  nor  yet  even 
violent  outrages  so  strictly  interdicted  as  afterwards.  But,  on  the  contrary,  a  person 
thus  injured  is  permitted  to  avenge  himself  on  his  traducer,  provided  he  did  net  beat  him 
to  death,  or  render  him  a  cripple.  It*  a  wicked  action,  which  a  man  related  concerning 
his  neighbor  was  true,  he  received  no  punishment  whatever;  for  the  ezceptio  veritatit 
then  operated  in  full  force."  Michaclis's  Cumin,  on  the  Laws  of  Moses,  art.  2.'l,_s.  2, 
Smith's  translation. 

There  was  one  instance,  and  but  one,  where  the  law  of  Moses  imposed  a  specific  pun- 
ishment upon  the  publication  of  caluminous  falsehood,  and  that  was  where  a  man  falsely 


xi  PRELIMINARY  DISCOURSE. 

all  contain  enactments  imposing  prohibitions  and  restraint,  in  order 
to  guard  against  the  abuse  of  language,  by  converting  the  privilege 
of  communication  into  the  means  of  effecting  private  injury  or  pub- 
lic (A:)  mischief. 

The  evils  which  necessarily  arise  from  a  licentious  abuse  of  the 
faculties  of  speaking  and  writing,  would  be  of  too  obvious  a  nature 
to  bear  inquiry  or  comment,  were  the  mere  necessity  for  restraint 
the  sole  object  of  investigation  ;  but  a  far  more  difficult  consider- 
ation remains  behind,  and,  in  order  to  judge  of  the  mode  and  extent 
of  the  limits  which  ought  to  be  imposed  on  such  communications,  it 
is  essential,  in  the  first  place,  to  enquire,  as  to  the  nature  and  ex- 
tent of  the  evils  which  render  such  restraints  necessary,  or  at  least 
expedient. 

This  consideration  immediately  leads  to  a  very  important  and 
characteristic  distinction  between  such  evils  as  are  occa- 
[  *xiii  ]    sioned  by  an  abuse  of  these  faculties,  *first,  to  individuals 
in  particular  (Z),  and  secondly,  to  society  in  general.     In 
law,  as  well  as  medicine,  it  is  natural  to  suppose,  a  priori,  that  dif- 
ferent evils  would  require  different  remedies. 

The  most  serious  and  dangerous  form  in  which  an  injury  of  this 
nature  can  affect  an  individual ',  is,  that  of  a  false  accusation  of  a 
crime  ;  especially  where  it  is  aided  by  false  testimony,  in  a  court  of 

accused  his  wife  of  not  having  proved  a  virgin  on  the  wedding  night.  Deut.  xxii.  13,  19 
The  penalty,  in  respect  to  such  a  charge,  which,  where  well  founded,  was  expiated  by  the 
death  of  the  criminal,  was  threefold; — 1st.  corporal  by  stripes;  2ndly,by  the  payment  of 
a  pecuniary  fine,  viz.  100  shekels  to  the  woman's  father,  which  was  the  highest  fine  im- 
posed by  the  Mosaic  law,  and  was  no  doubt  given  to  the  father  in  respect  of  the  reproach 
which  had  been  cast,  not  merely,  on  the  woman  herself,  but  her  parents,  brothers,  and 
sisters,  and  the  whole  family;  3dly,  by  his  forfeiture  of  the  right  of  divorce. 

(k)  The  necessity  for  such  regulations  naturally  occurs  to  the  illiterate  as  well  as 
the  educated.  The  members  of  Benefit  or  Friendly  Societies,  in  this  country,  who  usually 
legislate  for  themselves,  seldom  complete  their  simple,  artless  code  without  introducing 
penal  prohibitions,  and  oftentimes  singular  ones,  against  unmannerly  and  abusive  lan- 
guage. 

{I)  When  the  injury  is  principally  to  the  individual,  it  is  obvious  that,  on  grounds  of 
natural  justice,  compensation  ought  to  be  made  to  him;  and  where  the  awarding  dam- 
ages to  the  individual  injured  is  a  sufficient  restraint,  it  would  be  inconsistent  with  the 
first  principles  of  civil  liberty  to  inflict  a  further  penalty  by  fine  to  the  state,  or  the  im- 
prisonment of  the  offender,  simply  for  the  reason,  that  such  further  restraint  is  unne- 
cessary; and  therefore  penal,  as  contra-distinguished  from  civil  liability,  ought  not  to 
attach,  unless  either  where  restraint  is  necessary,  and  no  individual  in  particular  is  in- 
jured, as  in  the  case  of  a  blasphemous  or  immoral  publication,  or  where,  though  an  in_ 
dividual  be  injured,  yet  the  public  are  also  injured  or  placed  in  jeopardy,  either  by  the 
means  of  annoyance  used, — or  because  the  private  remedy  is  in  itself  an  insufficient  re- 
straint, in  consequence  of  the  difficulty  of  enforcing  it. 


PRELIMINARY  DISCOURSE.  xiii 

justice,  by  which  the  property,  liberty,  or  even  life  of  the  accui    I 
is  placed  in  direct  and  immediate  jeopardy.    The   making  a  false 

charge,  even  where  it  does  not  end  in  a  legal  assassination,  by  the 

death  of  an  innocent  party,  is  s<>  enormous  a  crime  in  Its  conse- 
quences, and  so  odious  and  atrocious  an  abuse  of  the  forms  of  jus- 
tice, as  to  render  it  probable  that  this  Bpecies  of  defamation  would 
attract  notice  and  pnnishment  in  very  early  times  ;  and  it  is  remark- 
able that  the  first  denunicatron  against  slander,  in  the  Mosaic  law, 
seems  to  be  coupled  with  a  specific  denunication  (m) 
against  'judicial  calumny,  afterwards  more  emphatically  [  "xiv  ] 
repeated  Id  the  Decalogue. 

Such  practices,  which  tend  immediately  to  the  privation  of  pro- 
perty, liberty,  or  even  life  itself,  are  formidable  in  proportion  to  the 
probability  that  they  will  be  successful;  and,  therefore, although  they 
must  at  all  times,  and  under  all  circumstances,  be  highly  dangerous, 
yet  it  is  obvious  that  they  are  the  more  particularly  to  be  dreaded, 
whenever  the  means  of  judicial  investigation  arc  still  imperfect  and 
inadequate  to  the  attainment  of  truth  (n),  or  in  a  subsequent  stage 
of  society,  when,  for  purposes  foreign  to  justice,  false  accusers  are 

listened  to  and  encouraged  (o). 
[  *xv  ]  *A  man  may  also  be  placed  in  a  state  of  legal  jeopardy 
by  means  of  slander  which  affects  him  indirectly  in  a 
judicial  proceeding.  This  may  occur  in  all  cases  where  the  law 
admits  evidence  of  a  man's  general  good  character  (;/),  for  the  pur- 
Cm)  Thou  shalt  not  raise  a  false  report;  put  not  thine  hand  with  the  wicked  to  be  an 
unrighteous  witness.  Exod.  c.  xxiii.  v.  1.  See  also  Deut.  xxvii.  25. — And  though,  by  the 
law  of  England,  judicial  perjury  is  accounted  but  a  misdemeanor,  unless,  indeed,  it  be 
used  as  the  successful  means  of  taking  away  the  life  of  an  innocent  person,  yet,  by  the 
laws  of  many  nations,  it  has  been  punished  capitally.  By  the  law  of  the  Twelve  Tables 
a  false  witness  was  thrown  from  the  Tarpeian  rock,  si/ahum  testimonium  dicassit  saxo 
dejicitor,  Gell.  xx.  Afterwards  the  punishment  was  arbitrary;  1.  10.  D.  de  tcstilms.— 
Sent.  v.  25,  s.  2.  Except  in  war,  where  a  false  witness  was  beaten  to  death  with  sticks 
by  his  fellow  soldiers.  Polyb.  vi.  35.  The  Libellus  Famosus,  or  false  and  anonymous 
charge  of  a  capital  crime,  was,  by  many  later  laws,  punished  capitally. 

(n)  It  is  the  ordinary  policy  of  a  barbarous  and  illiterate  people,  to  substitute  arti- 
ficial and  arbitrary  proofs  of  innocence  or  guilt  in  the  plai '  careful  and  rational  in- 
vestigation. Hence  the  superstitious  modes  of  trial  by  the  Saxon  ordeal  and  Norman 
combat,  and  the  doctrine  of  compurgation,  or  law  wager,  which,  even  at  this  day,  is 
permitted  by  the  law  of  England. 

(o)  Witness  the  legal  assassinations  which  wei  imong  the  Romans,  when  "  ut 

qvis  districtior  accuuitor  vclut  sacrosaneiua  cral."     Ami  also  by  means  of  the  Libellus 
Famosus,  or  secret  charge  of  a  capital  crime.     So   fatal  had  such  accusati  il  - 
that  the  authors  of  them  were  justly  made  amenable  to  capital  punishments  by  numer- 
ous provisions. 
(/>)  As  the  law  of  England  does.   Formerly  common  fame  that  a  man  had  been  guilty 


xv  PRELIMINARY  DISCOURSE. 

pose  of  rebutting  the  presumption  of  guilt  on  a  criminal  charge ; 
for,  by  the  propagation  of  calumnious  reports,  he  may  be  unjustly 
deprived  of  the  advantage  which  the  evidence  of  good  character 
would  otherwise  have  afforded.  The  destruction  of  character,  in 
such  a  case,  would  not  only  affect  a  party  directly,  by  depriving  him 
of  that  evidence  which  he  might  have  used  positively  to  his  advan- 
tage, but  negatively  and  indirectly  also,  by  raising  the  inference, 
that  he  is  a  man  of  absolutely  bad  character. 

To  this  extent  may  an  individual  be  injured  by  false  charges, 
through  the  medium  of  judicial  proceedings.  In  the  next 
[  *xvi  ]  place,  although  the  value  of  character,  and  *its  intimate 
connection  with  every  benefit  and  advantage  which  social 
life  can  confer  be  obvious,  yet,  in  order  to  appreciate  fully  the  ex- 
tent of  the  evil  which  may  result  from  privation  of  character  and 
the  nature  of  the  remedy  which  ought  to  be  awarded  in  respect  of 
such  an  injury,  a  few  observations  may  not  be  wholly  superfluous. 

A  state  of  civil  society  is  in  effect  one  great  system  of  mutual  aid, 
trust,  and  confidence  (#),  by  which  mankind  are  bound  together. 
Each  individual,  whatever  be  his  rank,  his  talents,  or  his  wealth, 
considered  as  a  single  and  isolated  being,  is  weak  and  helpless,  each 

of  an  offence,  was  sufficient  ground,  by  the  law  of  England,  for  putting  him  on  his  trial, 
without  any  other  preliminary  inquiry.  Among  the  Romans,  witnessess  to  character 
were  called  laudatores,  and  if  the  accused  could  not  produce  at  least  ten  of  these,  it  was 
deemed  better  to  produce  none. — Quam  illium  quasi  legitimum  numerum  consuetudinis 
non  explere. — Cic.  Verr.  v.  22,  and  see  Cic.  pro  Balb.  18.  Cleunt.  69.  la  the  rude 
and  barbarous  times  of  our  Saxon  ancestors,  where  compurgation  was  a  species  of  trial, 
and  when  an  accused  party  was  deemed  to  be  innocent  without  further  inquiry,  because 
a  specified  number  of  witnesses  swore  that  they  believed  him  to  be  so,  character  and 
reputation,  if  respect  was  really  paid  to  such  oaths,  must  have  been  of  infinite  impor- 
tance. 

(5)  The  first  principle  of  civil  association,  the  inutuum  beneficiorum  commercium,  is 
described  by  Seneca,  with  such  beauty  and  simplicity  that  little  excuse  is  requisite  for 
transcribing  the  passage; — 

Quo  alio  tuti  sumus  quam  quod  mutuis  juvamur  officiis  ?  hoc  uno  instructior  vita 
contraque  incursiones  subitus  munitior  est  beneficiorum  commercio.  Fac  nos  singulos 
quid  sumus  ?  prseda  animalium  et  victimiaj  ac  bellissimus  et  facillimus  sanguis.  Quo- 
niam  coeteris  animalibus  in  tutelam  sui  satis  virium  est;  quoecunque  vaga  nascuntur  & 
actura  vitam  segregem  armata  sunt.  Hominem  imbecillitas  cingit,  non  unguium  vis 
non  dentium  terribilem  ceteris  fecit,  nudum  et  infirmum  societas  munit.  Duas  res  de- 
dit  quie  ilium  obnoxium  cseteris  validissimum  facerent  rationem  est  societatem.  Itaque 
qui  par  esse  nulli  poterat  si  seduceretur  rerum  potitur.  Societas  illi  dominium  omnium 
animalium  dedit;  sociatas  terris  genitum  in  alieme  naturae  transmisit  imperium  &  do- 
minari  etiam  in  mare  jussit.  Hgeo  morborum  impetus  arcuit,  senectuti  adminicula  pro- 
spexit,  solatia  contra  dolores  dedit.  Hreo  fortes  nos  facit  quod  licet  contra  fortunam 
advocare. — Hanc  societatem  tolle  et  unitatem  generis  humani  qua  vita  sustinetur  scin- 
des.     Senec.  de  benef.  1,  4,  c.  18. 


PRELIMINARY  DISCOURSE.  xvi 

must  depend  on  others,  not  only  for  the  comforts,  but  even  for  the 
necessaries  of  life,  for  security  of  person  and  of  property.  He 
must  trust  to  his  lawyer  for  the  preservation  of  his  pro- 
perty when  it  is  claimed  by  an  'adversary  ;  to  his  physi-  [  "xvii  ] 
cian  in  time  of  sickness  ;  to  his  servants  for  the  faithful 
discharge  of  the  ordinary  though  meaner  duties  of  life.  But  the 
reposing  of  confidence  implies  the  selection  of  agents  competent 
to  the  discharge,  us  well  of  the  higher  and  more  important  duties 
of  a  public  nature,  as  of  the  ordinary  and  private  duties  of  society. 
With  the  exception  of  those  high  public  offices,  which,  <>n  grounds 
of  civil  policy,  are,  by  the  constitution  of  the  particular  .-tali-,  de- 
creed to  be  hereditary,  the  appointment  must  be  matter  of  selection 
and  choice  vested  in  the  government,  or  in  the  people,  or  in  individ- 
uals specially  delegated  to  the  trust,  and  every  member  ol'  society 
must  be  left  to  exercise  his  own  diseretion  in  selecting  those  whom 
he  may  choose  to  trust  in  the  varied  connections  of  life.  Now  it  is 
obvious,  that  it  seldom  can  happen  that  the  power  of  sel  sction  can 
be  properly  and  discreetly  exercised  on  the  mere  persona]  know  ledge 
of  any  single  individual,  founded  on  his  own  actual  experience.  It 
is  constantly  necessary  to  place  reliance  on  the  knowledge  and  in- 
formation of  others,  not  only  in  those  instances  where  choice  is  to 
be  made  of  public  functionaries,  but  even  in  those  ordinary  and 
daily  instances,  where  every  man  reposes  trust  and  confidence  in 
Others,  with  a  view  to  his  own  interests  and  private  concerns.  Whe- 
ther a  house  is  to  be  built,  or  a  surgical  operation  performed,  a  -nit 
to  be  commenced,  or  a  farm  to  be  purchased,  it  rarely  happens  that 
the  party  interested  in  selecting  his  architect,  his  surgeon,  his  soli- 
citor, or  surveyor,  does  not  place  some  reliance  on  information, 
which  he  derives  from  others,  as  to  the  skill  or  intcrgrity  of  the 
agent  whom  he  elects  to  employ. 

*Again,  every  one  who  trusts  another,  usually  posses-  [  \wiii  ] 
ses  both  the  inclination  and  the  means  of  forming  some 
estimate  of  his  abilities  and  principles;  and  though  the  opportuni- 
ties of  each  observer  may  lie  limited,  yet  if  all  who  know  tin-  party 
so  trusted  concur  in  forming  the  same  general  conclusion  on  the 
subject;  if  they  all  agree  in  stating  that  he  is  skilful,  diligent,  faith- 
ful, and  honorable  in  his  dealings ;  that  general  coincidence  hi  opin- 
ion of  many  possessed  of  the  means  of  judging,  affords  a  reasonable 
degree  of  probability  in  favor  of  the  correctness  of  their  conclu- 
sion. Hence  it  is,  that  where  a  trust  is  to  be  reposed,  and  a  selec- 
tion made,  the  party  who  is  to  exercise  it  may  fairly  rely,  not  only 


xviii  PRELIMINARY  DISCOURSE. 

on  the  particular  and  actual  experience  of  other  indivduals  but 
also  on  general  character  derived  from  the  united  experience  of 
others. 

Such,  then,  being  the  close  and  intimate  connection  between  char- 
acter and  temporal  preferment  or  acquirements,  two  circumstances 
are  to  be  noticed,  for  the  purpose  of  showing  how  peculiarly  suscepti- 
ble character  and  reputation  are  of  injury,  and  how  easily  confi- 
dence in  an  individual  is  destroyed  or  intercepted  by  slight  causes  ; 
and,  consequently,  of  inferring  the  general  necessity,  not  only  of 
protecting  reputation  by  municipal  provisions,  but  also  of  devising 
such  as  are  adequate  to  the  exigency  of  the  occasion. 

In  the  first  place,  it  is  to  be  remarked,  that  good  character  is  but 
presumptive  evidence  of  good  principles  ;  whilst  on  the  other  hand, 
the  commission  of  a  single   dishonorable  or  unworthy   action  is  de- 
monstrative of  bad  ones.     Hence  it  is  that  the  report  of  a 
[  *xix  ]    single  act  of  delinquency,  if  credit  be  given  to  it,  at  once 
is  fatal  to  the  most  exalted  reputation. 

The  character  acquired  by  an  exterior  of  probity  exhibited  to  the 
world  for  half  a  century,  necessarily  yields  at  once  to  the  proof  that 
the  party  is  at  last  guilty  of  a  single  act  of  dishonesty. 

In  the  next  place,  as  far  as  reputation  and  confidence  in  charac- 
ter are  concerned,  slight  suspicion  is  usually  attended  with  the  same 
evil  consequences,  with  belief,  founded  on  actual  proof,  and  suspi- 
cion is  thus  equivalent  to  proof.  For  where  even  a  slight  suspicion, 
as  to  a  man's  conduct  or  principles,  is  once  excited,  he  who  would 
otherwise  have  reposed  confidence,  must  either  proceed  to  do  so, 
notwithstanding  the  suspicion  which  prevails,  or  remove  all  doubt  by 
inquiry  and  investigation,  or  withhold  his  confidence  altogether. 
To  trust  blindly,  and  without  inquiry,  as  to  character,'  would  usu- 
ally be  deemed  rash  and  imprudent  ;  but  to  do  so,  after  an  actual 
though  obscure  warning,  would  be  an  act  of  folly  and  imprudent 
weakness,  where  a  man's  own  interests  were  concerned,  and  of 
real  injustice,  where  the  interests  of  others  were  involved.  To  in- 
quire and  investigate  would  usually  be  a  work  of  labor,  trouble, 
and  difficulty,  in  which  few  care  to  engage  ;  and  thus  it  would  sel- 
dom happen  that  the  party  whose  duty  or  interest  it  was  to  make 
the  selection,  would  not  adopt  the  third  alternative,  and  withhold 
his  confidence  from  one  to  whom  a  suspicion,  however  slight,  attach- 
ed, to  repose  it  in  another  whose  character  was  untainted.  If 
one,  about  to  deposit  a  large  sum  of  money  in  the  hands  of  a 
banker,  werj  casually  to  hear  that  he  had  committed  an  act  of  bank- 


PRELIMINARY  DISCOURSE.  xx 

ruptcy,    what  course     'would    be    the    natural     c<>.  *xx  ] 

quence  ?    To  trust  without  inquiry,  would  be  absolute  fol- 
ly ;  to  investigate  the  truth  of  the  report  would,  at  all  events,  be 
irksome  and  troublesome,  and,  after  all,  might  be  unsatisfactory  ; 

the  natural  result  would  be,  that  la.'  would  choose  to  employ  some 
other  depositary,  who  was  placed  beyond. the  reach  of  all  doubt  and 
suspicion.  Bui  as  one  acted,  so  would  all,  and  thus  a  false  alarm, 
originating  in  private  malice,  might  be  adequate  to  the  destruction 
of  credit  and  consequent  ruin. 

Again,  although  the  municipal  law  of  the  land  may  afford  securi- 
ty of  person  and  of  property  to  all,  yet  is  there  a  large  and  estima- 
ble'portion  of  good,  which  arises  from  a  state  of  civil  society,  a  par- 
ticipation in  which  cannot  be  positively  conferred  or  secured  by  any 
laws,  and  the  enjoyment  of  which  cannot  be  protected,  except  neg- 
atively and  collaterally,  by  the  restraining  such  injuries  to  charac- 
ter as  tend  to  destroy  it.  That  constant  reciprocation  of  good  offi- 
ces, of  mutual  aid  and  friendship,  which  constitutes  the  great  charm 
and  blessing  of  social  lift%  and  which  depends  on  the  exercise  and 
influence  of  the  ordinary  feelings  of  kindness  and  benevolence,  can 
be  but  remotely  influenced  by  any  municipal  regulations.  J  Jut  as 
no  man  of  honor  or  reputation  would  willingly  connect  himself  with 
base  and  unworthy  associates,  imputations  on  a  man's  conduct  or 
principles  necessarily  tend  immediately  to  debase  and  degrade  him 
from  the  situation  he  holds  in  the  favor  and  esteem  of  others. 

To  exalt  a  man's  reputation  in  society  is  to  ensure  to  him  the  re- 
spect and  affection  of  mankind,  and  to  lay  open  the  ave- 
nues to  prosperity  and  honor  ;  to  degrade  'and  disgrace  'xxi  ] 
him  is  to  banish  him  to  a  state  of  wretched  solitude  and 
destitution  (r),  to  render  him  Ihe  very  scorn  of  men,  the  outcast  of 
the  penplo, — a  condition  lower  than  that  of  the  brute  which  enjoys 
its  mere  animal  life,  nnembittercd  with  the  painful  sen-,'  of  degra- 
dation, dishonor  and  contempt. 

Now,  although  municipal  laws  cannot  properly  interfere  to  direct, 
or  control  men  in  their  ordinary  intercourse  and  mutual  transac- 
tions, but  leaves  each  at  liberty  to  exercise  hi--  own  discretion,  and 
consequently,  although  su  I  I  cannot,  by  any  positive  and  direct 
interposition,  secure  to  an  individual  the  advantages,  benefits,  and 
comforts,  to  which  his  conduct  in  society  may  justly  entitle  him,  yet 
the  law  not  only  may,  but  ought  to  interfere,  to  protect   him  from 

(r)  Nullo  interimeute  seJ  cuncti3  aversantibus  et  commercia  etiam  sermonis  neganti- 
bus. 

Vol.  I.  2 


xxi  PRELIMINARY  DISCOURSE. 

unjust  and  malevolent  aspersions  which  deprive  him  of  the  benefits 
and  advantages  in  which,  as  a  member  of  the  community,  he  ought 
to  participate. 

The  law  cannot  compel  individuals  to  consult  the  most  skilful  phy- 
sician  ;  it  must  be  left  to  a  patron  to  select,  in  his  discretion,  the 
most  worthy  object  for  bestowing  preferment ;  but,  though  the  law 
cannot,  in  any  such  instances,  ensure  success  to  the  most  deserving, 
but  must  leave  it  to  depend  on  the  discretion  and  consciences  of  in- 
dividuals, yet  it  may,  on  the  soundest  and  most  obvious  principles  of 
justice,  interfere  to  prohibit  false  and  injurious  charges  of  ignorance, 
dishonesty,  or  profligacy,  which    tend    to    exclude  such 

*xxii  ]  parties   *from   enjoying  that  degree  of  success  to  which 
their  merits  justly  entitle  them. 

The  right,  then,  of  every  man  to  the  character  and  reputation 
which  his  conduct  deserves,  stands  on  the  same  footing  with  his  right 
to  the  enjoyment  of  his  life,  liberty,  health,  property,  and  all  the 
comforts  and  advantages  which  appertain  to  a  state  of  civil  society, 
inasmuch  as  security  to  character  and  reputation  are  indispensably 
essential  to  the  enjoyment  of  every  other  right  and  privilege  inci- 
dent to  such  a  state. 

'  Assuming,  then,  that  restraint  is  expedient,  with  a  view  to  the 
protection  of  the  private  interests  of  individuals,  what  is  the  proper 
mode  and  measure  and  extent  of  such  restraint  ? . 

Prohibitory  restraints  must  be  either  preventive,  remedial ,  or  penal. 

The  very  nature  of  the  injury  excludes,  to  a  great  extent,  all 
merely  preventive  provisions.  By  the  law  of  nature  and  reason,  a 
man  is  justified  in  repelling  attempts  at  personal  violence,  by  oppos- 
ing force  to  force.  Injuries  to  character  do  not  admit  of  such  re- 
straints, they  are  usually  inflicted  in  the  absence  of  the  party  whose 
character  is  defamed.  It  is  true,  that  the  press  might  be  subjected 
to  censorial  restraints,  which  could  not  be  applied  to  oral  or  written 
calumnies ;  the  policy,  however,  of  this  species  of  restraint,  as  well 
as  the  principles  of  penal  coercion,  will  be  more  conveniently  con- 
sidered hereafter. 

The  most  obvious  and  practicable  mode,  indeed  the  only  one 
which  merits  consideration,  consists  in  the  awarding  a  pecuniary 
recompense  in  damages.  It  may,  however,  be  proper  to 
[*xxiii]  remark,  that  although  the  *very  nature  of  the  injury  ex- 
cludes a  remedy  by  restitution,  yet,  that  attempts  have  been 
made  among  some  modern  nations,  to  award  a  proximate  kind 
of  remedy,  by  compelling  the  calumniator  to  pronounce  a  palinode, 


PRELIMINARY  DISCOURSE.  xxiii 

or  recantation,  of  his  slander.     It  may  Bufficeto  remark,  that  this  is 
at  best  a  remedy  of  a  very  doubtful  and  unsatisfactory  description. 

The  sincerity  of  an  extorted  recantation  must  necessarily  be 
stamped  with  suspicion.  It  is  obvious,  thai  the  degree  of  credit 
which  it  deserved  would  bear  an  inverse  proportion  to  the  fine  to  be 
paid  or  punishment  to  be  Buffered,  in  the  alternative  of  the  part; 
refusing  to  pronounce  the  required  palinode.  If  A.  being  adjudged 
either  to  acknowledge  that  II.  was  not  a  rogue,  or  to  pay  C100, 
were  to  elect  the  palinode,  the  only  safe  inference  would  be  that  A., 
for  some  reason  or  other,  had  rather  admit  that  B.  was  not  a  rogue 
than  pay  the  money. 

What  then  are  the  proper  limits  to  the  remedial  action  for  dam- 
age ?  in  other  words,  what  circumstances  at  the  least  ought  to  con- 
cur to  entitle  the  party  to  the  remedy,  and  under  what  other  cir- 
cumstances ought  the  remedy  to  cease  notwithstanding  that  con- 
currence ? 

The  circumstances  on  which  the  title  to  a  remedy  must  depend, 
are  obviously,  1,  the  injurious  quality  or  consequences  of  the  cal- 
umny ;  2,  the  mode  or  extent  of  publication;  3,  the  motive  and  in- 
tention of  the  party  in  publishing;  or  4thly,  collateral  circumstan- 
ces connected  with  the  publication. 

In  the  first  place,  then,  as  far  as  regards  the  nature,  consequences 
and    quality  of   the    defamatory  matter    published,   the 
*very   notion  of  compensation  implies,  that  some  loss  or  [  "xxiv  ] 
damage  has  been  occasioned. 

It  were  almost  nugatory  to  remark,  that  to  fix  any  precise  and 
settled  sum  or  value,  as  the  amount  of  the  fine  or  damages  to  be 
paid  by  an  offender  of  this  description,  is  the  work  of  early  and  in- 
experienced legislators  (s),  and  that  the  recompense  ought  always 

(s)  The  laws  of  Solon  punished  calumniators  by  an  arbitrary  fine.    Petit  in  Leg.  At- 
tic.   By  the  law  of  the  Twelve  Tables,  the   injuria,   in    general  subjected  the  i 
pay  a  pecuuiary  fine  or  compctmtio  i.  "  Si  quis  alteri  injari  im  fiv.it,  XXV.  /Ei  'is  puma 
sunto."    The  folly  an  1  absurdity  of  m  iking  either  a  fine  or  com  pens  ition  fixed  and  arbi- 
trary, was  well  illustrated  in  the  instance  of  Veratius,  or  Keratins,  a  riota  Roman,  who 
took  great  delight  in  walking  through  the  Btreetsof  Rome,  striking  ill  those  whom  he 
met.  according  to  his  fancy  and  caprice;  he  was  followed  by  a  servant  loaded  with  money 
for  the  purpose  of  immediately  paying  the  appointed  fine  to  th  se  whom  he  had  thus  in- 
sulted.   Gell.  Noct.  Att.  XX.  1.     It  may  fairly  be  presumed,  that  he  \\  ■  nun 
as  well  as  a  rich  one,  or  that  the  fine  and  blows  \\  >uld  spee  lily  be  returned,  the  latter 
■with  interest,  and  that  he  would  literally   be  repaid  in  his  own  coin.     The  absurdity  of 
annexing  an  invariable  compensation  to  a  variable  injury,  naturally  oc                 more 
equitable  law.    Prretores  postea  hanc  ponam  aboleeoere  et  relinqui  censuerunt  injuriifl 
qui  BBstumandia  recuperatores  sc  daturos  edixerunt.    Gell.  Nbo.  Att.  XX.  1.      eineoc 
Ant.  Rom.  Ad.  Inst.  Lib.  4,  tit.  9.  5. 


xxiv  PRELIMINARY  DISCOURSE. 

to  be  apportioned  to  the  actual  extent  of  an  injury  which  is  so  un- 
certain and  various  in  its  consequences. 

The  remedy  then  is  applicable,  and  ought,  in  point  of  natural 
justice,  to  be  applied,  unless  there  be  some  extrinsic  reason  to  the 
contrary,  in  all  cases  where  a  party  has  suffered  any  actual  loss  or 
detriment  in  his  person  or  property,  from  a  wilful  act  of  slander. 
And  this  principle  extends  not  merely  to  all  cases  where 
[  *xxv  ]  the  *party  has  been  deprived  of  some  actual  legal  right, 
but  to  all  others  where  any  social  benefit  has  been  inter- 
cepted which  he  would  otherwise  have  enjoyed,  although  he  could 
not  have  claimed  it  as  an  absolute  and  vested  legal  right.  Thus  it 
extends  not  only  to  the  case  where  a  mau,  by  malicious  slander, 
suffers  a  temporary  privation  of  his  personal  liberty,  to  which  he  has 
an  absolute  legal  right,  but  also  that  of  a  clergyman  whose  presen- 
tation to  a  benefice  has  been  hindered  by  such  means. 

For  although  the  law  cannot  interfere  for  the  purpose  of  enforc- 
ing the  moral  obligation  on  the  part  of  the  patron,  to  prefer  the 
most  deserving  candidate,  but  necessarily  leaves  the  choice  to  his 
conscience  and  discretion,  yet  it  may  properly  interfere  for  the  pro- 
tection of  character,  and  to  compel  a  compensation  in  respect  of  a 
lqss  or  damage,  immediately  consequential  on  a  wilful  privation  of 
character. 

The  party  defamed  had  no  legal  title  or  perfect  moral  right  to  be 
preferred,  bat  he  had,  in  point  of  natural  justice,  a  right  to  the  cha- 
racter which  his  conduct  deserved,  and  consequently  a  right  to  com- 
pensation for  the  mischief  occasioned  by  one  who  had  wrongfully 
defamed  him.  This  general  principle  obviously  embraces  every  in- 
stance where  the  slander  occasions  any  loss  whatsoever,  capable  of 
pecuniary  admeasurement. 

But,  in  the  next  place,  ought  the  remedy  to  be  confined  to  those 
instances,  where  it  can  be  shown  that  some  actual  specific  loss  or 
damage  has  been  sustained  in  consequence  of  the  calumny  ;  or,  if 
not,  within  what  limits  ought  the  remedy  to  be  extended  ? 
[  *xxvi  ]  *It  would  in  the  first  place,  be  highly  inconvenient  and 
inexpedient  to  make  actual  damage  essential  to  the  ac- 
tion, without  regard  to  the  obvious  and  immediate  tendency  of  the 
defamation  to  occasion  great,  it  may  be  irreparable  injury.  In 
ordinary  instances  it  may  be  sufficient  that  the  law  should  provide 
a  remedy  for  a  mischief  already  suffered,  without  presuming  or  anti- 
cipating any  future  evil  consequence.  Be  this  as  it  may,  the  pecu- 
liar nature  and  tendency  of  an  injury  to  reputation  renders  it  con 


PRELIMINARY  DISCOURSE.  xxvi 

venient,  if  not  essential,  that/in  some  instances  at  least,  a  remedy 
should  be  given  in  respect  of  calumnious  imputations  upon  character 
though  no  actual  consequential  damage  can  be  proved.  That  is,  it 
is  desirable,  if  not  necessary,  under  certain  limits,  to  constitute  the 
defamation  a  substantive  and  positive  injury,  independently  of  the 
proof  of  consequential  damage. 

Were  it  otherwise,  if  actual  loss  were  invariably  essential  to  the 
remedy,  the  damage  occasioned  would  frequently  be  irreparable. 
One  of  the  peculiar  and  striking  characteristics  of  this  specie-  of 
injury  is  the  difficulty,  or  rather  the  impossibility,  of  estimating  its 
noxious  consequences,  and  adducing  proof  of  actual  mischief  dm 
its  ruinous  and  destructive  progress. 

If  a  physician,  attorney,  or  merchant,  could  not  obtain  a  ren- 
in respect  of  calumnious  reflections  upon  his  character  or  credit, 
until  he  could  adduce  specific  instances  of  losses  occasioned  by  such 
attacks,  he  might  be  effectually  ruined  before  his  proof  was  complete. 
Slander  tending  to  the  disinherison  of  the  party  calumniated,  affords 
a  strong  illustration  of  this  doctrine.     If  it  were  to  be  maliciously 
suggested  to  the  proprietor  of  a  large  family  estate,  that 
his  heir  apparent   was  illegitimate,  *such  a  report,  if  [  'xxvii  ] 
believed,  might  strongly  tend  to  induce  the  owner  to  de- 
vise his  property  to  another  branch  of  the  family  of  undoubted  le- 
gitimacy.    Now  if  the  heir  apparent  were  not  permitted  to  com- 
plain of  the  wrong  done  him,  until  the  injury  had  been  consummated 
and  completed  by  his  disinherison,  the  remedy  would  frequently  be 
afforded  in  vain ;  it  would  be  most  difficult  to  prove  that  he  had 
been  disinherited  in  consequence  of  the   slander,  and  even  if  he 
could  prove  the  fact,  the  author  of  the  mischief  might  be  unable  to 
yield  compensation,  and  thus  a  serious  and  cruel  injury  would  be 
left  without  a  remedy.     On  the  other  hand,  by  regarding  the  slan- 
der as  a  substantive  injury,  the  party  aggrieved  is  entitled  to  arrest 
the    progress  of   the  mischief    in    limine;  by  means  of  an    action 
against  the  author  or  publisher  of  the  scandal,  then  challenges  him 
to  produce  formal  proof  of  his  charges  ;  he  establishes  their  falsity, 
if  they  be  false,  and  obtains   reasonable   damages   for  the   trouble, 
anxiety,  expense,  and  danger  to  which  he  has  wantonly  been  exposed  ; 
and  the  mischievous  effects  which  might  otherwise  have  accrue  1 
from  the  slander  are  averted. 

Is  then  the  remedy  to  be  extended  indefinitely,  though  no  speeial 
damage  can  be  proved,  to  every  species  and  degree  of  defamation 
2* 


xxvii  PRELIMINARY  DISCOURSE. 

which  tends  to  the  occasioning  of  some  loss  or  damage ;  and  if  not, 
where  is  the  limit  to  be  assigned  ? 

To  extend  the  remedy  indefinitely  to  all  communications  tending 

to  produce  damage,  and  a  fortiori  io  award  a  pecuniary  recompense 

in  respect  of  such  contumelious  and  insulting  language  as  was  not 

likely  to  produce  temporal  damage,  although  it  tended 

[  'xxviii  ]  to  hurt  the  *pride  or  delicacy  of  the    offended   party 

would,  it  seems,  be  highly  inexpedient. 

For,  in  the  first  place,  as  it  is  difficult  to  say  that  any  undeserved 
imputation  on  a  man's  moral  conduct,  character,  or  temper,  does  not 
tend  to  dislodge  him  from  his  state  and  condition  in  society,  and 
thus  remotely  at  least  to  deprive  him  of  temporal  comforts  and  ad- 
vantages, it  is  plain  that  so  wide  an  application  of  the  principle  would 
afford  far  too  large  a  scope  for  vexatious  litigation,  and  the  ordinary 
intercourse  of  society  would  be  impeded  and  fettered  by  the  appre- 
hension of  vexatious  and  harrassing  suits  for  trifling  causes. 

Abusive,  insulting,  and  unmannerly  language,  which  affect  not  a 
man's  liberty  or  estate,  are  of  too  indefinite  and  uncertain  a  char- 
acter to  be  .the  subject  of  an  action  for  pecuniary  damages  (f). 
Such  injuries,  or  rather  affronts  to  the  feelings,  are  as  incapable  of 
definition  as  of  admeasurement.  They  depend  on  the  rank,  situa- 
tion, and  condition  of  the  parties,  and  on  circumstances  which  may 
be  felt  but  not  defined  ;  they  may  depend  on  the  tone  of  voice,  the 
gestures,  even  looks  by  which  they  are  accompanied,  and  in  some 
instances,  silence   may  be  more  contemptuous  and  insulting  than 

direct  expressions  (m). 
[  *xxix  ]       *It  seems  then  that  it  is  expedient,  on  principles  of 
general  policy  and  convenience,  that  the  law  should  de- 
fine, by  sufficient  limits,  in  what  instances  simple  defamation,  unac- 
companied by  special  damage,  should  constitute  a  substantive  ground 

(t)  Contumelia  minor  est  injuria  quam  queri  magis  quam  exsequi  possumus;  quam 
leges  quoque  nulla  dignam  vindicta  putaverunt. 

(u)  The  Roman  law  which  made  the  personal  insult  or  contumely  the  basis  of  the  ac- 
tion, civil  as  well  as  criminal,  was  exceedingly  vague  and  indefinite;  see  the  observa- 
tions below,  p.  xxxi.  By  the  law  of  England  no  action  lies  in  respect  of  the  speaking  of 
mere  general  abusive  words  which  are  not  followed  by  special  damage,  neither  are  such 
words  indictable,  unless  in  some  special  cases,  as  where  they  amount  to  a  challenge,  or 
affect  a  court  or  magistrate  in  the  execution  of  public  justice,  or  are  applied  to  the  mag- 
nates of  the  realm.  The  only  mode  of  proceeding  by  thelaw  of  England,  in  respect  to 
abusive,  and  unmannerly  and  insulting  language  in  general,  is  by  causing  ihe  offender 
to  be  bound  over  to  the  good  behaviour.  The  ancient  restraints  on  scolds,  the  ducking 
stool  and  the  bridle,  whether  it  be  that  the  one  sex  is  grown  more  gallant  or  the  other 
less  virulent,  have  long  fallen  into  disuse. 


PRELIMINARY  DISCOURSE  xxix 

of  action.  It  is  obvious  that  the  application  of  these  principles,  in 
particular  instances,  must  in  a  great  measure  depend  on  the  state 
and  circumstances,  manners  and  habits,  of  the  society  for  whose 
use  sucli  rules  arc  to  be  applied. 

There  is, however,  one  consideration  of  external  policy  which  al- 
ways operates  in  favor  of  the  extension  of  the  action.    Experience 
has  fully  proved  that  to  refuse,  or  even  to  restrict  the  civil  remedy 
within  too  narrow  limits,  is  sure  to  occasion  personal  conflicts  and 
bloodshed  ;  the  ordinary  transition  i-  a  verbis  ad  vt  rbera,  men  being 
always  apt  to  carve  out  their  own  remedy  in  such  cases  where  it  is 
denied  by  the  law.     And  though  this  consideration  operates  pri 
pally  as  an  argument  for  subjecting  calumniators  to  penal  censure, 
inasmuch    as   such   insults   tend  immediately  to  produce  public  mis- 
chief and  disorder,  yet  is  this  consequence  by  no  means  to  be  over- 
looked in  relation  to  the  civil  remedy;  for  no    provi- 
sion can  more  surely  tend  to  'restrain  individuals  from    [  *xxx  ] 
avenging   injuries  to  their  reputation  than  to  have  the 
means  afforded,  not  merely  of  obtaining  redress  and  compensation, 
in  the  shape  of  damages,  which  is   frequently   but  a  secondary  con- 
sideration with  an  injured  party,  but  also,  which  is  usually  of  in- 
finitely greater    importance,  of   vindicating    their    characters,  by 
openly  challenging  their  accusers  to  proof  of  their  assertions.    This 
mode  of  vindication,  which  for  reasons  which  will  afterward 
verted  to,  cannot  be  permitted  when  the  proceeding  is  purely  of  a 
criminal  nature,  necessarily  occurs  where  the  very  essence  of  the 
injury  consists  in  the  falsity  of  the  accusation. 

It  is  further  to  be  observed,  that  in  this,  as  well  as  other  instan- 
ces, where  a  general  rule  in  the  affirmative  or  negative  cannot  be 
adopted,  but  where  it  becomes  necessary  to  define  the  legal  boun- 
daries, it  is  always  more  important,  as  a  matter  of  legal  policy,  to 
adopt  plain  and  general  distinctions,  for  the  sake  of  clearness  and 
notoriety,  although  some  other  consideration  of  policy  should  be 
partially  sacrificed,  than  to  draw  a  line  more  nearly  adjusted  and 
suited  to  conflicting  principles,  but  of  greater  intricacy,  obscurity, 
and  difficulty.  For  it  is  obvious  that  the  quantity  of  mischief  and 
inconvenience  which  may  result  from  adopting  an  indistinct  rule,  or 
ill  defined  boundary,  may  far  exceed  any  evil  which  could  result 
from  the  partial  (f)  sacrifice. 

(c)  The  law  of  England  defines,  with  much  greater  distinctness  than  is  usually  found 
in  other  codes,  the  limits  of  the  civil  action  for  oral  slander  in  the  absence  of  special 
damage.    1st.  The  remedy  is  afforded  in  respect  of  a  charge  of  an  offence  visitable  with 


XXXI 


PRELIMINARY  DISCOURSE. 


[  *xxxi    ]     *Next,   as  to    the   quality  of    the  matter   published. 

Assuming,  then,  that  the  defamatory  matter  complained 

[  *xxxii  ]  of  "either  produces  or    immediately  tends  to  produce 

corporeal  punishment.  2Jly.  An  imputation  of  laboring  under  some  particular  infec- 
tious disorders,  odly.  Imputations  which  affect  a  party  in  his  office,  profession,  trade, 
or  means  of  livelihood;  or,  4thly.  Aspersions  which  tend  to  his  disinherison.  The  law 
is  less  definite  in  two  instances.  1st.  In  respect  of  slander  against  the  magnates  of  the 
realm,  or  scandalum  magnatum,  where  the  remedy  is  given  by  several  ancient  statutes, 
in  respect  of  calumnies  against  the  character  of  grandees;  and,  2dly,  in  the  instance  of 
written  slander  or  libel,  for,  contrary  to  the  principles  of  common  law,  general  insulting 
and  contumelious  expressions  are  the  subject  of  an  action,  when  the  communication  is 
in  writinf,  though  the  same  words  would  not  have  been  actionable,  had  they  been 
merely  spoken.  This  anomalous  appendage  to  the  common  law  principle,  which  regarded 
not  the  contumely  and  insult  so  much  as  the  loss  to  the  parties'  estate  and  means,  seems 
to  be  plainly  attributable  to  the  doctrines  of  the  civil  law,  which  were  first  imported 
into  the  Star  Chamber  practice,  in  cases  of  libel,  and  after  the  abolition  of  that  court, 
were;  in  part  at  least,  recognized  by  the  courts  of  common  law;  and  by  this  means  the 
action  for  written  slander  is  of  very  indefinite  extent.    See  vol.  1,  p   148. 

The  ground  of  the  action,  under  the  ancient  Roman  and  civil  law,  was  the  injuria, 
the  personal  insult  or  contumely  offered  to  the  party  defamed;  and  hence  it  was  that  the 
limits  of  the  action,  according  to  the  Roman  law,  were  very  indefinite  and  indistinct. 
Ait  prcetor  qui  adversus  bonos  mores,  convicium  cui  fecisse,  cujusve  opera  factum  esse 
dicitur  quod  adversus  bonos  mores  convicium  fiat  in  eum  judicium  dabo.  D.  1,  47,  10. 

Again,  ait  prtetor  ne  quid  infamandi  causa  fiat,  si  quis  adversus  ea  fecerit  prout  quae- 
qne  res  erit  animadvertam. 

Again,  Generaliter,  vetuit  prsetor  quid  ad  infamiam  alicujus  fieri.  Proinde  quodcum- 
que  quis  fecerit  vel  dixerit  ut  alium  infamel  erit  actio  injuriam. 

Some  curious  instances  are  given  in  the  digest  of  the  application  of  these  principles 
of  the  Romau  law.  Item  si  quis  pignus  proscripserit  venditurus  tanquam  a  me  accepe- 
rit  infamandi  mei  causa.  Si  quis  non  debitorem,  quasi  debitorem  appellaverit  injuriae 
faciendse  causae,  injuriarum  tenetur. 

Another  illustration  presents  a  very  singular  mode  of  defamation,  which  arose  out  of 
the  practice  which  prevailed  at  Rome,  for  the  relations  of  an  accused  party  to  dress  in 
sordid  habits,  and  allow  their  beards  to  grow,  in  order  to  excite  compassion  and 
favor  towards  the  accused.  Hence  it  was  that  a  party  intending  to  defame  another, 
accomplishes  his  object  by  assuming  a  squalid  and  abject  appearance,  under  pretence  of 
supplication  for  one  accused  of  a  heinous  crime.  Haec  autem  fere  sunt  quae  ad  infamiam 
alicujusque  fiunt.  Ut  puta  ad  invidiam  alicujus  veste  lugubri  utitur  aut  squalida  aut 
si  barbam  demittat  vel  capillos  submittat,  aut  si  carmen  conscribat,  &c. 

Many  incidents  were  founded  on  the  doctrine  of  the  Roman  law,  that  contumely  was 
the  ground  of  action,  in  which  it  diners  from  the  law  of  England.  If  an  infant,  or 
one  in  a  state  of  intoxication,  defamed  another,  the  action  failed,  for  the  mens  rea, 
the  coutumelious  intention,  was  wanting;  in  England,  such  a  defence,  if  the  act  were 
voluntary,  would  be  unavailable. 

By  the  Roman  law,  a  party  was  not  only  entitled  to  sustain  an  action  for  contumeli- 
ous words  spoken  concerning  himself,  but  also  in  respect  of  those  spoken  of  others  of  his 
family,  if  they  tended  collaterally  to  subject  him  to  degradation  and  contempt. 

Thus,  a  father  was  entitled  to  recover,  in  respect  of  a  contumelious  injury  offered  to 
his  wife,  children,  or  domestics,  provided  the  offender  knew  the  relationship  of  the  party 
so  offended.     Heineccius,  pt.  7,  sec.  118.     So  far  was  the  principle  carried  by  the  Ro- 


PRELIMINARY  MSG0UB6E.  xxxii 

actual   damage,  ought   the  falsity  O)  of  that  which  is 
published  *to  be  essential    to   the  rem  •  ly  ;    in    otter  [  *xxxiii  ] 

man  law,  that  even  the  heir  was  entitle  I  to  an  notion  for  an  insult  to  the  remains  or 
even  the  memory  of  the  deceased.  Et  si  forte  oadaveri  defunoti  tit  injuria  eui  haeredes 
bonorum  possessore*  exstitimus,  injuriaruin  Bostro   nomine  babemoj  Bpeotat 

enim  ad  existimationem  nostram  si  quae  ei  fiat  injuria.  tet  w  fama  ejus  mi 

karedes  eittitimut  lact  isatur. 

The  same  degree  of  indefiniteness  union  characterises  this  branch  of  the  Roman  law, 
naturally  pervades,  also,  the  codi  -  of  those  nations  who  have  a  lopted  the  principles  of 
that  law.  In  Scotland,  fori;  limits  oi  civil  us  well  as  criminal  liability  are  ex- 

ceedingly wide.  Thus,  intheoase  of  AUki  .  ft  ■  I  $  Fleming,  i  Mur.  Rep.  1 1'',  (cited 
in  Mr.  Borthwick'a  learned  and  valuable  Treatise  on  the  Law  of  Libel  in  Scotland,  p 
181,)  the  judge  observed,  "  There  are  disadvantages  in  allowing  actions  of  this  sort, 
where  there  is  no  accusation  of  a  crime,  or  allegation  of  specific  damage.  By  the  law 
of  Scotland,  however,  any  thiny  defamatory  is  the  foundation  of  an  action."  In  the  case 
of  Mackenzie  v.  Reid,  2  Murr.  Rep.  159.  Borthw.  181,  the  court,  after  observing  that 
the  law  on  the  subject  of  slander,  in  England,  was  very  particularly  defined,  added, 
here  any  tiling  that  produces  uneasiness  of  mind,  is  actionable 

Several  instances  are  cited  by  Mr.  Borthwick,  in  his  excellent  work,  p.  186,  of  suits, 
commenced  and  sustained  on  very  slight  grounds.  tn  Memis  v.  Jop  and  others,  Dr. 
Me. ..is  instituted  an  action  against  the  defenders,  in  order  to  obtain  redress  for  the  alleg- 
ed injury  of  having  caused  his  designation,  "  Medicines  doctor  in  Aberdonia,"  contain- 
ed in  the  charter  of  the  infirmary,  to  be  translated  "  Doctor  of  Medicine  in  Aberdeen:' 
instead  of  physician  in  Aberdeen.  The  action  was  sustained;  but  after  years  of  I iti- 
gation,  the  defendants  were  assoilized.  In  the  conclusion  of  his  report,  Mr.  Tut  ob- 
serves, "  That  there  was  no  strong  animus  injuriandi  to  hurt.  Dr.  Memis  seemed  admit- 
ted; at  the  same  time,  it  appeared  a  conduct  rather  peevish  and  uncivil  in  his  brethren, 
and  an  intentional  affront  to  refuse  to  gratify  the  doctor  in  this  request.  But  the  lords 
thought  that  they  did  not  meet  to  decide  what  was  civil,  but  what  was  wrong.  In  this  case 
there  was  no  wrong.  The  translation  was  good;  no  d image  had  followed,  or  could  fol- 
low upon  it;  therefore  the  action  was  foolish  and  wrong-headed 

The  cole  penal  of  France  visits  with  penal  censures  all  calumnies  uttered  in  public 
places,  or  published  in  writing  or  in  print,  which  impute  facts  which  are  the  subject  of 
criminal  or  correctional  process,  or  whioh  would  expose  another  to  the  contempt  or  ha- 
tred, <7»  me]>ris  on  a  la  haine,  of  the  citizens: — 

If  the  fact  imputed  be  punishable  with  death,  perpetual  bard  labor,  or  deportation. 
the  oalumniator  is  liable  to  imprisonment  for  from  two  to  five  yen-;,  and  a  fine  of  from 
20U  to  5000  Francs.  In  other  such  cases,  to  an  imprisonment  of  from  one  to  six  months, 
and  a  fine  of  from  60  to  2000  francs. 

Injurious  expressions,  which  impute  a  vice  but  no  precise  fact,  if  so  publish  1,  sub. 
ject  the  offender  to  a  fine  of  from  16  to  :>"l»  francs. 

"  All  other  injurious  and  outrageous  expressions,  whioh  want  the  double  character, 
de  gravite  et  publicite,  are  delicts  of  simple  police. 

The  Veritas  convincii  cannot  be  pleaded  generally;  on  the  oontraiy  every  imputation 
is  presumed  to  be  false  which  is  not  legally  established  in  the  due  course  of  law,  but  if 
pending  a  proceeding  for  such  a  calumny,  the  defendant  shall  denounce  the  complainant, 
proceedings  shall  be  staved  till  the  charge  be  decided. 

And  in  case  the  fact   imputed  Bfa  ill  be  proved  to  be  true,  the  author  of  the  imputa- 
tion shall  be  exempt  from  all  punishment. 

(hi)  By  the  laws  of  Solon,  it  wis  forbi  1  leo  to  defame  another  in  public  places,  under 
a  penalty  of  three  drachmas  to  the  party  injured  and  two  to  the  treasury.     Lege  sanxit 


xxxiii  PRELIMINARY  DISCOURSE. 

•words,  ought  its  truth  to  afford  an  answer  to  the  claim, 
[  *xxxiv  ]  either  absolutely  *or  with  qualifications  ?     By  the  law 

Solon  ne  quis  de  alio  detrahat  in  locis  sacris  in  judiciis,  in  magistratum  concessibus,  &  in 
spectaculis,  qui  secus  faxit  ei  de  quo  detraxit  multam  pendat  drachmas  tres,  &  aerario 
publico  duas.     Pettit.  in  Leg.  Att.  535. 

In  such  instances,  the  truth  or  falsity  of  the  charge  seems  to  have  been  immaterial; 
the  compensation  was  paid  in  respect  of  the  public  insult.  In  other  cases,  a  fine  of  two 
drachmas,  as  it  seems,  was. imposed,  in  respect  of  mere  light  and  trivial  charges,  whilst 
in  respect  of  graver  ones,  and  where  a  crime  of  legal  cognizance  was  charged,  a  much 
heavier  fine  was  imposed.  But,  in  either  case,  the  fine  was  conditional, unless  the  defend- 
ant proved  his  charge  to  be  true.  The  law  was  tod  leyoviu  xuxibg  iu  v  in)  unocpuvr} 
tig  e;iv  uh]dr\  t«  etgrjuava  tijiuovgdiu.  Qui  de  alio  detractaverit,  ni  probarit 
verum  esse  quod  objecit  probrum,  multator.  But  it  was  enacted,  jovg  lelovr/jcg  xt, 
ibiv  AHOPPHTfLN  neviaxoaiag  dga/fiag  6q>edeiv.  Non  licebat  igitur  alteri 
exprobare  ea  quae  si  quis  patrasset  in  eum  insurgebant  leges  &  animadvertebant  nisi, 
&n  oq-aivfiv  wg  egir  aXrjdri  posset  apud  judices.    Pettit.  ib. 

In  respect  of  some  other  specific  charges,  a  fixed  penalty  was  also  payable.  Vetitum 
quoque  lege  erat  alteri  objicere  quod  clypeum  abjecisset  qui  hoc  convicium  fecerit  quin- 
gentis  drachmis  multabatur.— EAN  AE  TISVAZKH  AFLOBEBAHKENAI 
TJIlVAZniJA  THOAIKON  EINAI. 

The  same  laws  also  contained  an  express  provision  against   a  calumnious  charge  of 
homicide.     Nam  homieidae  omnibus  civitatis  juribus  sacris  pariter  &  publicis  excide 
bant,  ita  ut  ne  illos  quidem  alii  alloquio  dignarentur.     Pettit.  ib. 

Whether,  according  to  the  Roman  law,  the  truth  of  a  defamatory  charge  made  against 
an  individual  afforded  a  complete  defence,  without  reference  to  the  motive  and  intention 
of 'the  publisher,  has,  it  is  well  known,  been  doubted.  And  yet  the  authorities  seem  to  ' 
weigh  strongly  in  favor  of  the  affirmative  of  the  question,  as  well  in  reference  even  to 
the  criminal  as  to  the  civil  action.  The  general  doctrine  appears  most  clearly,  from  the 
celebrated  response  of  Paulus,  which  was  imported  into  the  digest.  "  Eum  qui  nocen- 
tum  infamavit  non  esse  bonum  cequum  ob  earn  rem  condemnaripeclataenim  nocentium 
nota  esse  el  oporlere  et  cxpedire;  for  though,  according  to  Matthaeus,  "  Solet  Paulus  in 
disserendo,  8y.oTiy.oc  seu  obscurusesse;"  yet  his  meaning  is  in  this  instance  too  plainly 
expressed  to  admit  fairly  of  any  doubt,  notwithstanding  the  interpretation  attempted  to 
be  imposed  upon  the  words  by  his  numerous  commentators.  Some  of  them  have  assert- 
ed, that  the  response  must  be  limited  to  the  charging  offences,  the  detection  of  which  is 
of  importance  to  the  state;  but  the  plain  and  obvious  meaning  of  the  terms  repels  such 
a  restriction;  the  word  peccata  naturally  comprehends  every  species  of  delinquency, 
whether  it  be  against  law  or  morals,  and  is  not  confined  to  the  admissum  crimen,  or  de- 
lictum, by  which  legal  delinquency  is  so  frequently  described. 

Thus  Matthteus,  in  his  treatise  De  Criminibus,  cap.  1,  makes  peccalum  the  genus, 
crimina  &  delicta  species,  and  he  observes  "  sunt  peccata  quaelam  ita  levia  ut  ea  quera 
mur  magis  quam  exequamur  ut  legibus  quoque  nulla  sit  imposita  poena,  cujus  generis 
si  quis  requirat  inveniat  sequentibus  locis,  1.  si  quis  14.  §  Divus  D.  de  Relig.  et  sunt 
fun.  1.  3.  §  non  perpetuae,  D.  de  sepul.  viol.  1  verum  est.  39  D.  de  furt.sunt  alia  quae 
legibus  vindicantur  non  una  ta'men  emnia  severitate."  These  and  many  other  authori- 
ties, which  might  if  necessary  be  cited,  show  clearly  that  the  peccalum  of  Paulus  was 
not  to  be  restrained  to  the  highest  and  most  penal  offences.  See  Cic.  de  Finibus,  4. 
Horat.  Sat.  1.  Even  if  the  sense  were  doubtful,  it  would  be  absurd  to  adopt  a  con- 
struction the  effect  of  which  would  be  to  permit  a  man  to  justify  by  proving  the  truth, 
where  he  had  imputed  the  commission  of  a  monstrous  crime,  but  to  exclude  him  from  a 
similar  defence  when  he  charged  one  of  inferior  magnitude.     If  a  man  may  justify  a 


PRELIMINARY  DISCOURSE.  xxxiv 

of  England,  which,  in  this  respect,  conforms  with,  as  it 

seems,  the  'rule  of  civil  law,  the  truth  of  the  alleged  [  'xxxv  ] 

charge  of  murder,  by  proving  it  to  be  true,  why  should  lie  not  be  permitted  to  do  the 
same  when  he  has  imputed  robbery  or  theft.  If  the  public  are  interested  in  knowing 
the  character  of  a  murderer,  have  tiny  Dot  also  some  interest  in  knowing  that  of  a 
thief?     The  reason  for  allowing  truth  to  ope:  tBtifioation,  is  still  stronger  where 

the  alleged  slander  does  nut  impute  any  misconduct  of  legal  cognizance;  for  there  the 
public  cannot  be  put  on  their  guard  )>y  means  of  a  judicial  charge  Others  again  have 
urged  that  the  response  must  be  construed  with  the  ani  this  condition,    that 

the  imputation  be  not  made  animo  eonviciandi.  And  the  rescript  of  Dioclesian  and 
Maximian  has  been  cited  in  support  of  this  limitation.  "  Si  non  convicii  consilio  te  ali- 
quid  injuriosurn  dixisse  probare  potes,  fides  vert,  a  calumnia  te  defendit.  Si  autem  in 
rixam  inconsulto  calore  prolapsus  homicidii  convicium  objecisti,  et  ex  eo  die  annus  ex- 
cessit,  cum  injuriarum  actio  annuo  tempore  prescripta  sit  oh  injuria:  admissum  conveniri 
non  pote^."  The  true  construction  of  the  words  fides  vcri.  seems  clearly  to  be,  not  as 
some  would  have  it,  that  the  truth  shall  be  a  defence,  provided  the  alleged  slander  was 
not  published  with  intent  to  defame,  but  that  proof  of  the  absence  of  such  an  in- 
tention shall  be  a  defence.  The  words  fides  veri  do  not  refer  to  the  proof  of  the  truth  of 
the  defamatory  matter,  but  to  proof  of  the  circumstance  stated  by  Victorinns,  namely, 
that  he  had  imputed  the  crime  of  homicide, — non  convicii  consilio.  C.  Victorinus  had 
inquired  whether  he  should  be  amenable  if  he  could  prove  that  he  uttered  the  words 
without  the  animus  infamandi  ?  The  answer  was,  that  if  he  could  establish  the  truth 
(not  of  the  charge  but,)  of  the  circumstance  which  he  relied  on,  i.  e.  the  absence  of  an 
intention  to  defame,  that  proof  would  serve  for  a  defence.  It  is  scarcely  necessary  to  ob- 
serve that  the  plain  and  literal  construction  of  the  words  of  Paulus  derives  confirmation 
from  the  celebrated  dialogue  between  Horace  and  Trebatius. 

Trebatius:  "  Sed  lamen  ut  monitus  caveas,  ne forte  negoli 
Incutiat  tibi  quid  sanclarum  inscitia  legwn. 
Si  mala  condideril  in  quern  quis  carmina  jus  est 
Judicium  que." — 
Horatius.    "  Eslo  si  quis  mala,  sed  bona  si  quis 

Judicc  condiderit  laudalur  Ccesare,  si  quis 
Opprobriit  dignum  laceraverit  integer  ipse." 
Trebatius:  "  Svlccntur  ritu  tabula:  :  tu  missus  abibis." 

The  very  nature  of  the  penalty  imposed  on  a  liheller,  by  the  Cornelian  law,  supplies 
an  argument  tending  to  a  Bimilar  conclusion :  he  was  to  become  intestabilis,  that  is  in- 
capable of  giving  testimony  in  a  judicial  proceeding.  But  why  intestabilis,  if  he  bad 
published  merely  the  truth?  To  exclude  one  from  giving  testimony  who  had  by  a 
false  and  malicious  charge,  attempted  to  deprive  another  of  his  character,  would  at  least 
be  a  consistent  and  plausible  provision,  but  it  would  he  a  strange  reason  fur  rejecting  a 
witness,  that  he  had  published  what  was  //  ue,  even  though  he  bad  done  it  maliciously. 

With  respect  to  those  judicial  but  anonymous  charges  of  oapit  il  offences  which  came 
within   the  description  of  Libellus  1  tutions  de  Libellh  Fantasia 

in  the  Theodosian  ("ode,  particularly  the  1th  and  6th,)  the  author,  when  disoovere  1.  not 
only  might,  but   was  obliged,  at  the  peril  of  his  life,  to  prove   the   truth  of  the  charge. 
Thus,  according   to   the  first  constitution   in  the  Theodosian  code,    "  8i  quando  &i 
libelli  reperiantur  nullas  exinde  calumnias  patiantur  ii  quorum  de  factis  vel  nominibus 
aliquid  continebunt,  sed  scriptionis  auctor  potius  reperiatur  et  repertus  cum  omni  vigore 


xxxv  PRELIMINARY  DISCOURSE. 

slander  is  an  absolute   answer,  or  bar  to  the  claim  to 

[  *xxxvi  ]  damages.      But  *in   some  other    countries,  even  those 

which   recognise  the    authority  of  the    civil    law,   the 

co^atur  his  de  rebus  quas  proponendas  credidit  comprobare,  nee  tamen  supplicio  etiatn 
si  aliquid  ostenderit  subtrahatur." 

It  is  observable  that  the  latter  branch  of  this  constitution  directed  that  the  author 
of  the  anonymous  charge  should  not  escape  without  punishment,  even  though  he 
proved  the  charge  to  be  true  ;  yet  this  was  no  doubt  intended  to  be  awarded  in  respect 
of  his  misconduct  in  the  first  instance,  in  making  an  anonymous  charge,  when  he  was 
able  to  convict  the  guilty  party,  it  does  not  by  any  means  appear,  that,  having  proved 
the  truth,  he  was  subject  to  the  same  degree  of  punishment  as  though  he  had  not  given 
such  proof ;  indeed,  the  very  contrary  may  fairly  be  inferred.  Even  this  provision 
found  no  place  in  the  Justinian  code,  which,  so  far  from  inflicting  punishment  on  the 
author  of  the  Famosus  Libellus,  when  he  had  disclosed  his  name  and  proved  his  charge, 
deemed  him  to  be  worthy  of  praise  and  reward.  "  Sane  si  quis  devotionis  suae  ac  salutis 
publicae  custodiam  gerat,  nomen  suum  profiteatur,  &  quse  perfamosum  libellum  perse- 
quenda  putaverit,  ore  prqprio  edicat,  ita  ut  absque  ulla  trepidatione  accedat,  sciens 
quidem  quod  si  adsertionibus  suis  veri  fides  fuerit  opitulata,  laudem  maximam  et  pre- 
mium a  nostra  dementia  consequetur  ;  sin  vero  minime  vera  ostenderit  capitali  poena 
plectetur." 

Consistently,  however,  with  the  response  of  Paulus,  the  Roman  law  contemplated 
many  instances  of  the  convicium  and  libellus  which  were  ^  visited  civilly  as  well  as 
criminally,  notwithstanding  their  truth.  Thus  it  was  in  all  cases  where  the  publication 
was  in  its  own  nature  injurious  and  illegal,  and  where  no  advantage  was  to  be  derived 
from  publicity.  "  Sin  autem  quod  objicitur  innotescere  nihil  interest,  puta  si  alter  poe- 
nam  delicti  sui  sustinuer  it  aut  in  vitium  naturale  objiciatur  claudus  aliquis  luscus  aut 
wibbosus  vocetur,  veritatem  convicii  non  excusare  quo  minus  animo  injuriandi  id  factum 
prfesumatur,  contrarii  tamen  probationem  hie  admit tendam."  Vinn.  Comm-in  Just. 
Inst.  lib.  4.  tit.  4. 

The  law  of  England  differs  from  the  Roman  law  in  regard  to  the  effect  of  the  Veri- 
tas convicii,  in  two  respects,  first,  that  the  former  repels  the  civil  remedy  in  all  cases 
where  the  imputation  is  true  (except,  perhaps,  in  the  case  of  a  conviction  and  subse- 
quent pardon  ;)  the  Roman  law,  on  the  other  hand,  limited  the  defence  to  those  cases 
where  the  public  were  benefited  by  the  divulgation  of  the  truth.  By  the  Roman  law, 
the  personal  affront,  or  contumeiia,  to  which  the  consilium  conviciandi,  the  animus  infa- 
mandi,  or  injuriandi,  were  essential,  constituted  the  basis  of  the  proceeding  criminal  as 
well  as  civil  :  the  benefit  which  society  would  derive  from  the  exposure  of  evil-doers 
was,  on  grounds  of  policy,  in  either  case,  a  legal  bar  to  the  proceeding  ;  but  it  was  one, 
which,  in  its  nature,  was  not  available  where  the  imputation  was  of  such  a  nature  that 
notoriety  was  unimportant.  The  law  of  England,  on  the  other  hand,  considers  the 
damage  consequent  on  the  slander,  whether  actual  or  presumed,  as  the  basis  of  the 
civil  remedy,  and  denies  the  remedy  where  the  imputation  is  true  ;  partly,  perhaps 
adopting  the  same  rule  of  policy  with  the  civil  law,  but  chiefly,  as  it  seems,  on  the 
general  consideration  that,  where  nothing  more  than  the  truth  is  published,  any  damage, 
or  loss  consequent  upon  it  cannot,  in  point  of  natural  justice,  or  at  least  of  civil  policy, 
and  on  grounds  of  general  utility  and  convenience,  be  attributed  to  the  mere  publisher 
of  the  fact.  The  same  considerations  tend  to  explain  another  broad  distinction  between 
the  law  of  England  and  the  Roman  law,  connected  with  the  present  subject  ;  according 
to  the  latter,  when  the  truth  of  the  alleged  slander  operated  as  a  defence  against  the 
civil  action,  it  operated  also  equally  as  a  defence  against  the  criminal  proceeding ; 
whilst,  on  the  contrary,  though  the  law  of  England  constitutes  the  truth  universally  a 


PRELIMINARY  DISCOURSE.  xxxvi 

truth  of  the  calumny  Is  regarded  but  as  a  qualified  dc-  [  'xxxvii  ] 
fence  subject  to  Beveral  modifications  (x). 

bar  to  the  civil  randy  yet  the  general  rule  is,  that  this  consideration  affords  no  defense 
upon  a  criminal  charge.     The  civil  law   made  the   personal  insult  or  contumely  in 
criminately  the  basis  of  criminal  ami  of  civil    liability,  Qtly  the  justification, 

which  on  grounds  of  public  policy  exempted  a  party  from  liability  in  the  civil  prooa  I- 
ing,  operated  with  at  least  equal  if  not  greater  force  to  protect  liira  from  penal  conse- 
quences. The  law  of  England,  on  the  contrary,  places  civil  and  criminal  responsibility 
on  distinct  grounds,  regarding  the  mischief  to  the  private  individual  as  the  basis  of  the 
former,  the  mischief  to  society  the  foundation  of  the  latter  ;  and  though  in  the  criminal 
proceeding,  the  law  docs  not  by  any  mi  light  of  the  i  a  that  the  pub- 

lio  is  benefited  by  the  exposure  of  delinquents,  and  on  this  ground  as  it  -not 

visit  mere  oral  defamation  penally,  yel  in  case  of  written  defamation  the  minohief  which 
Would  result  to  the  public,  for  want  of  restraint,  is  the  ground  of  imposing  restraint, 
and  this  operates  even  where  the  defamatory  matter  is  true.  The  law,  in  effect,  proceeds 
on  a  presumption  that  a  greater  degree  of  mischief  would  result  to  society  from  permit- 
ting the  truth  of  written  Blander  to  operate  as  a  justification  in  such  a  case,  than  that 
which  arises  from  a  partial  suppression  of  truth.  But  although  it  is  now  a  well  eel 
lished  rule  of  the  law  of  England  that  truth  is  no  defense  to  a  oriminal  prosecution  for 
calumny,  yet  it  seems  to  be  at  the  least  doubtful  whether  a  different  rule  did  not  former- 
ly prevail  even  in  this  country. 

By  a  law  of  Alfred,  the  inventor  of  slander  was  liable  to  expiate  his  offence  by  the 
loss  of  his  tongue,  unless  he  redeemed  it  by  the  price  of  his  head.  Siquis  publicum  men- 
dacium  confingat  et  ille  in  co  firmetur  nulla  levi  re  hoc  emendet  sed  lingua  ei  excidatur 
nee  minore  pretio  redimi  lioeat  quam  capitis  gestimatione.  Wilkins  ,  Leg.  Ang.  Sax.  41 
pi.  28.  See  also  the  law  of  Edgar,  Lamb,  Saxon  Law.  64.  And  by  a  law  of  Canut. 
* « Et  sequis  alterum  injuria  diffamare  velit  ut  alterutruin  vel  pecunia  vel  vita  ei 
diminuatur  si  tunc  alter  earn  refcllere  possit  perdat  linguam  Boam  nisi  Ulam  capitiis 
sestimatione  redimere  velit.  Wilk.  Leg.  Ang.  Sax.  180.  Bracton,  in  the  reign  of  Henry 
Third,  states  the  law  under  the  head  of  injuria  nearly  in  the  language  of  the  Institutes. 

"  Fit  autem  injuria  non  solum  cum  quis  pugno  percussus  fuerit  verberatus  vulneratus 
vel  fustibus  ccesus,  verum  cum  ei  convicium  dictum  fuerit  vel  de  eo  factum  carmen  fa- 
mosum  et  hujusmodi."  It  was,  therefore,  not  improbable  that  the  Veritas  convicii  was, 
in  conformity  with  the  civil  law,  allowed  generally  by  way  of  plea  or  exception.  Again, 
from  the  language  of  the  statutes  de  scandalis  inagnatum,  the  first  of  which  was  in  the 
third  year  of  Edward  the  first,  the  offence  against  which  they  were  directed,  was  the 
spreading  of  false  news,  rumors,  or  tales,  and  this  object  plainly  appears  also  from  the 
st.  2.  R.  2  st.  1.  c.  5.  "  Of  the  devisers  of  false  news,  and  of  horrible  and  false  lies 
of  prelates, dukes,  earls,  and  barons,  and  other  noble  and  great  men  of  the  realm,  or  of 
the  things  by  which  the  a  dd  persons  never  were  ipoken  or  ,h>i>e,  or  thought,  &c,  it 
enacted  that  none  under  grevious  pain,  &o.;"  whether  these  be  considered  aa  introduc- 
tory of  a  new  offence,  or  bul  as  de  il  iratory  of  the  former  law,  it  is  oot  easy  to  suppose 
that  falsity  was  a  necessary  ingredient  in  order  to  bring  an  offender  tojnstioe,  for  bo&o- 

dalizing  the  magnates  of  the  realm  ;    ,.  -    falsity   w.is  not  essential  ; 

in  other  words,  that  the  king  and  his  nobles  were  worse  protected  against  defamatory 
attacks  than  the  rest  of  the  community.  The  earliest  judicial  authority  in  this  country, 
for  saying  that  truth  is  no  answer  to  an  indictment  for  a  libel,  appeal's  to  be  the  resolu- 
tion in  the  case  Be  Libellis  Famosis,  5  Coke.  125  :  and  from  that  time  the  rule,  which 
seems  to  be  one  of  policy  and  convenience,  has  been  .-trictly  adhered  to. 

(x)  Whatever  of  doubt  existed  among  the  Roman  jurists  as  to  the  effect  of  pleading 

Vol.  I.  3 


xxxvii  PRELIMINARY  DISCOURSE. 

[  *xxxviii  ]      *The  importance  and  interest  which   belong  to  the 

question,  may  warrant  a   few  observations    tending  to 

[  *xxxix  ]  *show  the  reasonableness  and  expediency  of  the  rule 

the  Veritas  convicii.  and  in  addition  to  this,  all  the  doubts  created  by  the  conflicting 
opinions  delivered  by  .the  numerous  commentators  upon  the  Roman  law,  have  been  im- 
ported into  the  laws  of  those  countries  which  have  adopted  the  rules  of  the  Roman  law 
on  this  subject. 

Even  the  law  of  England  has  not  unfrequently  been  obscured  by  difficulties  plainly 
derivable  from  tins  plentiful  source.  It  was  long  before  the  distinction  was  completely 
settled  in  this  country,  that  truth  was  a  complete  justification  in  a  civil  action,  though 
it  was  no  defence  to  a  prosecution  for  a  libel  ;  the  doubts  on  this  subject  were  evidently 
attributable  to  the  civil  law  doctrine,  which,  in  a  great  measure,  confounded  civil  with 
criminal  liability,  and  made  the  same  justification  apply  to  either. 

The  law  of  Scotland  affords  a  strong  illustration  of  the  obscurity  and  difficulties  which 
have  resulted  to  those  who  have  embraced  the  doctrines  of  the  civil  law  and  its  commen- 
tators. Mr.  Borthwick,  in  his  very  able  and  excellent  work,  on  the  Law  of  Slauder  and 
Libel  in  Scotland,  where  he  treats  of  the  plea  of  Veritas  convicii  and  the  obscurity  un- 
der which  it  labors,  does  not  hesitate  to  ascribe  that  obscurity  to  the  conflicting  and  un- 
satisfactory opinions  which  the  commentators  on  the  Roman  law  have  delivered  in  refe- 
rence to  this  subject.  He  truly  says  after  Mattheeus  (De  Crim.)  "  Ad  glossographos 
frustra  aspexeris  garriunt  enim  magnas  nugas  totoque  oelo  aberranta  mente  jurisconsul- 
torum  Pauli  et  Ulpiani."  And  he  concludes,  "  Hence  we  may  account  for  the  opposite 
opinions  as  to  the  right  to  plead,  and  the  effect  of  proving  the  Veritas  convicii  which 
have  been  supported  by  Scottish  lawyers  amidst  the  great  learning  and  infinite  ingenui- 
ty to  be  found  in  the  printed  pleadings,  which  have  taken  place  in  some  of  our  laws  on 
the  subject  of  libel  and  slander  ;  they  borrowed  their  authorities,  to  a  considerable  ex- 
tent, from  these  Glossographi.  and  the  law  of  England,  to  which  the  pleadings  in  the 
Scotch  cases  contain  also  frequent  examples  of  reference,  has,  on  this  point,  not  served 
to  preserve  us  from  contrariety  of  decisions  ;  for  it  also  has  had  its  fluctuations  as  to 
the  competency  and  incompetency  of  justifying  the  charge  in  cases  of  defamation." 
Mr.  Borthwick,  in  tracing  the  law  of  Scotland  on  this  subject,  refers  to  two  ancient 
acts  of  the  Scotch  Parliament,  which  as  he  justly  observes,  seems  to  indicate  the  favor 
shown  by  the  common  law  (of  Scotland)  to  the  admission  of  the  plea  of  Veritas  convicii 
as  an  exculpatory  defence,  even  in  some  instances  of  criminal  prosecutions. 

The  first  of  these  is  the  act  of  1510,  c.  104.  "  The  pains  of  judges  that  dois  wrong, 
and  of  them  quha  slanders  them  wrongously  "  and  the  act  provides  that,  "  gif  any 
manner  of  person  murmuris  (defames,  see  Hume's  Comm.  334,  400,)  any  judge,  tem- 
poral or  spiritual,  alsweil  lords  of  session  as  utheris  and  proovis  not  the  samin  siiffici- 
antly,  he  shall  be  punished  in  suitable  manner  and  sorte,  as  the  said  judge  or  person 
whom  he  murmuris;  and  shall  pay  any  paine  arbitral  at  the  will  of  the  king's  grace 
for  the  infaming  of  sic  persones."  And  by  the  act  of  1587,  c.  49,  which  narrates  in 
the  preamble  the  odious  crime  of  treason,  and  on  the  other  hand,  that  "  the  malicious 
accusers  of  innocent  persons  are  nocht  to  be  credited,  but  severely  punished,  therefore 
the  act  proceeds ;  it  is  statute  and  ordained  by  our  soveraine  lord  and  the  three  estates  of 
the  present  parliament,  thatquhaever  accuses  anuther  person  of  treason  the  party  calum- 
niate being  called,  accused,  and  acquite  of  the  said  crime  of  treason,  the  accuser  shall 
incur  the  same  crime  of  treason  quhair  of  he  accused  the  uther."  It  has  already  been 
observed  that  the  statutes  of  scandalum  magnatum  which  makes  the  falsity  of  the 
charge  part  of  the  description  of  the  offence  and  which  have  been  considered  to  be  de- 
claratory of  the  common  law  of  England,  afford  probable  reason  for  inferring  that,  by 


PRELIMINARY  DISCOUKSI-:. 


XXXIX 


adopted  by  the  law  of  England    in   this   respect — of 
withholding  *the  remedy  in  damages  in  all  cases  where  *xl 

the  imputation  is  true. 

That  no  right  to  damages  can,  on  general   principles,  [     "xli 
be  founded  on  a  publication  of  the  truth  seems  to  follow, 
"simply  from  the  consideration  that  the  reason  for  award-  [    'xlii 
i tiir  damages  in  every  such  case  fails.    The  right  *to  com-  [  'xliii 
pensation,  in  point  of  natural  justice,  is  founded  on  the 
deception  and  fraud  which  has  been  practised   by  the  defendant  to 
the  detriment  of  the  plaintiff. 

the  ancient  common  law,  falsity  was  essential  to  criminality,  in  case  of  personal  defa- 
mation. But  though  the  civil  law  is  recognized  by  the  law  of  Scotland,  it  is  remarkable 
that,  according  to  the  modern  practice  in  Scotland,  the  plea  that  the  facts  were  true,  is 
not  a  complete  answer  to  a  criminal  prosecution  for  libel,  (Borthwick's  L.  L.  250,)  and 
that,  even  in  the  cases  of  contumelious  words  spoken  in  the  heat  of  a  dispute  and  to  the 
person's  face,  the  truth  of  the  injurious  words  seldom  absolves  entirely  from  the  punish- 
ment.    Erskine's  Principles,  b.  4,  tit.  4,  sec.  45. 

To  this  extent,  theref  re,  the  Scotch  jurists  have  deviated  from  the  Roman  law,  which 
seems  equally  to  have  repelled  both  criminal  and  civil  actions  where  the  charge  was  true. 
With  respect  to  the  effect  which  the  law  of  Scotland  attributes  to  the  Veritas  convicii,  in 
civil  actions,  Mr.  Borthw  ick  after  stating  the  various  decisions  and  opinions  upon  this 
vexatissima  qucestio;  upon  which  lawyers  of  the  greatest  eminence  have  differed,  adds, 
that  some  of  them  have  thought  that  the  law  had  not  arrived  at  such  a  degree  of  ma- 
turity, as  to  possess  any  general  rule  upon  the  subject. 

It  seems,  however,  to  be  a  general  rule  of  the  law  of  Scotland,  that  the  truth  of  the 
imputation  shall  never  be  admitted  as  a  justification,  unless  some  circumstances  appear 
in  the  case  which  afford  a  presumption  of  the  defender's  want  of  malice,  or  at  least  to 
make  it  appear  that  whatever  his  secret  feelings  were,  he  acte  1  with  a  view  to  some 
beneficial  purpose.  And,  secondly,  that  the  truth  is  not  admissible,  even  to  the  extent 
of  mitigating  the  damages  where  the  inference  of  malice  is  too  strong  to  be  capable  of 
being  redargued. 

The  plain  and  simple  rule  of  the  law  of  England,  which  constitutes  the  truth  an  ab- 
solute bar  to  the  action  for  damages,  seems  to  possess  considerable  advantages  over  the 
corresponding  law  in  Scotland.  Its  application  is  comparatively  simple,  a - 
on  the  mere  matter  of  fact,  whether  the  charge  be  true  or  false;  whilst  on  the  contrary, 
by  the  law  of  Scotland,  a  previous  question  frequently  of  a  difficult  and  perplexing 
nature,  is  first  to  be  decided  by  the  court  as  a  matter  of  law,  that  is,  whether  the  proof 
of  the  fact  be  admissible  or  not.  The  admissibility  of  the  proof,  being  a  question  of 
law  for  the  opinion  of  the  court,  must  necessarily  induce  a  multitude  of  decisions,  e  »b 
being  in  itself  a  precedent  for  futureones.  And  even  where  the  question  of  admissibility 
has  been  decided  in  the  affirmative,  proof  of  the  truth,  by  the  Scotch  1  iw,  is  not  con- 
clusive, but  is  merely  allowed  to  operate  as  auxiliary  evidence  in  order  to  rebut  the  in- 
ference of  malice. 

This  doctrine  of  the  Scotch  jurists,  that  the  truth  is  material  only  so  fir  as  it  re- 
dargues or  rebuts  the  inference  of  malice,  is  obviously  founded  upon  the  notion  of  the 
civil  law,  that  the  essence  of  the  injury  consists  in  the  contumely,  insult,  or  personal 
affront. 


xliii  PRELIMINARY  DISCOURSE. 

*xliv  ]  *If  A.  falsely  and  maliciously  allege  that  B.  lias  com- 
mitted a  crime  punishable  by  the  law,  and,  in  conse- 
quence of  that  false  assertion  2.  suffers  imprisonment,  he  is,  in  point 
of  natural  justice,  entitled  to  compensation,  in  respect  of  the  injury 
thus  wrongfully  occasioned.  But  if  A.  were  truly  to  assert  that  B. 
had  committed  that  crime,  and,  in  consequence,  B.  were  to  be  impri- 
soned and  punished,  it  would  clearly  be  contrary  to  justice  and  rea- 
son that  A.  should  be  bound  to  make  compensation.  It  would  be 
manifestly  absurd  and  unreasonable  that  the  law  should  first  impose 
a  penalty  on  B.  for  his  delinquency,  and  then  entitle  him  to  recover 
the  amount,  or  an  equivalent  compensation  from  A.  It  is,  therefore, 
the  deception  which  has  been  practised  by  A.,  and  the  falsity  of 
his  communication  that  makes  the  difference,  and  which  constitutes 
B.'s  title  to  damages.  So,  in  general,  whoever  wilfully  and  falsely 
ascribes  misconduct  or  evil  principles  to  another,  is  guilty  of  fraud 
and  deception  towards  society,  which  possesses  an  interest,  in  truly 
knowing  and  estimating  the  conduct  and  character  of  its  various 
members,  and  is  guilty  also  of  an  act  of  injustice  towards  the  indi- 
vidual, because  the  imputation  tends  to  lower  and  degrade  him  from 
his  proper  place  in  society,  and  to  exclude  him  from  the 
r*xlv  ]  advantages  to  which,  as  a  member  of  *society,  he  is  just- 
ly entitled  (?/).     When,  therefore,  a  loss  or  damage  ac- 

(y)  The  sin  and  mischief  against  society  may  consist  in  deceitful  commendation  as 
well  as  in  unmerited  censure.  One  who  falsely  and  wilfully  recommended  an  ignorant 
profligate  to  a  patron  of  a  benefice,  as  a  fit  and  proper  person  to  be  preferred,  would  as 
much  otfend  against  morals  and  the  interests  of  society,  as  if  he  had  prevented  the  pre- 
ferment of  a  learned  and  conscientious  man,  by  maliciously  defaming  him.  The  sin  and 
mischief  to  society  would  be  at  least  as  great  in  the  former  case  as  the  latter,  although 
no  one  in  particular  could  show,  in  the  former,  that  he  had  sustained  any  absolute  tem- 
poral loss,  in  consequence  of  the  fraud.  If,  indeed,  any  temporal  loss  were  to  be  occa- 
sioned by  such  a  deceitful  and  fraudulent  statement,  then  it  would  be  both  morally  and 
politically  expedient  that  the  loss  should  be  borne  by  the  party  who  had  occasioned  it  by 
his  wrongful  and  immoral  act. 

This  plain  and  obvious  principle  is  fully  recognized  by  the  law  of  England,  as  indeed 
it  was  by  the  civil  law,  in  a  variety  of  instances.  Thus,  if  A.  were  fraudulently  to  in- 
duce B.  to  give  credit  to  C,  by  representing  C.  to  be  a  person  of  wealth  and  credit, 
though  A  knew  him  to  be  insolvent,  he  would  be  responsible  to  B.  for  any  loss  which  he 
might  incur  from  having  trusted  to  A.'s  representations.*  And  if  one  were  to  give  a 
false  and  undeserved  character  of  a  servant  for  honesty,  where  he  knew  him  to  be 
a  thief,  the  party  imposed  upon  having  sustained  damage  from  the  misrepresent- 
ation, would,  no  doubt,  be  entitled  to  compensation  from  the  author  of  the  deceit. 
The  great  principle  is,  that  where  temporal  loss  is  occasioned  by  fraud,  reparation  ought 

*  On  grounds  of  extrinsic  policy,  such  an  action  is  now  confined  by  the  provision  of 
the  late  act,  to  cases  where  the  fraudulent  representation  is  in  writing. 


PRELIMINARY  DISCOURSE.  xlv 

crues  from  such  a  misrepresentation,  it  is  'consonant  with  [  *xlvi   ] 
reason  and  natural  ju-uice,  that  the  author  of  the  mischief 
should  be  bound  to  repair  it. 

But  tin'  right  of  the  calumniated  individual  to  receive  a  coinp  sn- 
sation  must,  in  all  oases,  obviously  depend  on  the  consideration,  that 
by  tin.'  fraud  of  another  In-  has  been  deprived  of  that  which  ho  was 
Otherwise  justly  entitled  to  enjoy  ;  and  the  title  to  compensation 
must  therefore  cease,  when  the  truth  of  the  imputation  is  inconsis- 
tent with  the  right  of  enjoyment. 

If  a  man  commit  profligate  and  wicked  acts,  upon  what  principle 
can  he  bind  the  rest  of  mankind  to  silence,  or  demand  damages, 
should  his  real  character  be  divulged  ?  How  can  any  right  or  inte- 
rest be  claimed  in  a  false  character,  founded  in  fraud  or  hypocrisy, 
and  subsisting  only  through  ignorance?  In  short,  in  such  a  case, 
that  fraud  of  which  an  innocent  man  would  justly  be  entitled  to  com- 
plain, were  his  conduct  or  character  to  be  misrepresented,  attaches 
to  the  guilty  complainant  who  would  suppress  the  truth  ;  to  the  hy- 
pocrite who  would  maintain  the  show  of  religion  ;  to  the  profligate 
who  would  be  esteemed  moral  ;  to  the  villain  who  assumes  the  char- 
acter of  an  honest  man,  and  not  to  him  who  plucks  off  the  mask  and 
exhibits  the  delinquent  as  he  is  (V), 

*Were  the  truth  to  be  no  defence,  it  would  follow  that  [  *xlvii  ] 
a  guilty  man  would  be  entitled  to  far  greater  damages, 
in  respect  of  a  true  representation,  than  an  innocent  man  could 
claim,  in  respect  of  a  false  one  ;  the  probability  of  conviction  and 
of  punishment  would  be  far  greater  in  the  former  than  in  the  latter 
case. 

Again,  in  point  of  natural  justice,  it  is  an  understood  condition, 
in  all  the  various  dealings  and  intercourse  of  society,  that  everyone 

to  fallow;  to  this  extent  the  moral  and  municipal  law  concur.  Compensation  to  an  indi  - 
vidual,  in  respect  of  damage  occasioned  by  a  false  representation  of  his  character  or 
conduct,  is  one  class  of  cases  which  fill  within  this  great  principle,  and  in  this,  as  well 
as  all  others,  it  is  ihefrawi  or  dolus  which  gives  birth  to  the  right. 

If  A.  were  to  inquire  of  B.  as  to  the  credit  an  1  Bolven  v  of  ' !.,  B.  would  be  guilty  of 
an  immoral  and  fraudulent  act,  as  well  in  recommending  C.  for  his  honesty  an  1  wealth, 
when  he  knew  him  to  be  dishonest  and  insolvent,  as  in  wilfully  misrepresenting  him  to 
be  dishonest  and  insolvent,  when  he  knew  the  contrary  to  be  true.  Justice  requires 
that  reparation,  in  the  one  case,  should  be  mode  to  the  deceived,  in  the  other",  to  the 
slandered  party. 

(r)  Cum  autem  duobus  modis  id  est  aut  vi  aut  fraude  fiat  injuria,  fraus  quasi  vul- 
peculie  vis  Leonis  videtur,  utrumque  homine  alienissimuru  sed  fraus  odio  digna  majore. 
Totius  autem  injustice  nulla  oapitalior  est  quam  eorum  qui  cum  maximc  falluut  ip 
agunt  ut  viri  boni  esse  videantur.     Cic.  dc  off.  1,1. 

3* 


xlvii  PRELIMINARY  DISCOURSE. 

is  what  he  appears  to  be,  in  all  cases  where  exterior  appearance  can 
be  supposed  to  have  any  influence  in  such  dealings  ;  and,  therefore, 
whenever  an  advantage  is  obtained  by  virtue  of  a  false  appearance, 
that  advantage  having  been  gained. by  a  species  of  moral  fraud,  can- 
not be  the  subject  of  right. 

In  the  next  place,  how  does  the  question  stand  upon  grounds  of 
public  policy  and  convenience  ?  If  an  individual  has  a  right  to 
protection  against  calumnious  and  injurious  misrepresentations,  is  it 
not,  on  the  other  hand,  conducive,  if  not  essential,  to  the  welfare 
of  the  community,  that  the  character  of  individuals  should  be  truly 
estimated  ?  If  it  be  an  offence  against  an  individual  to  degrade 
him  from  his  place  and  condition  in  society  by  wilful  misrepresenta- 
tion, is  it  not  also  an  offence  against  society  to  raise  an  unworthy 
member  to  advantages  and  honors  which  he  did  not  deserve,  either 
by  false  commendation  or  peremptory  injunctions  to  silence  ? 

It  has  already  been  observed,  that  a  state  of  society  is  one  of 
mutual  confidence,  in  which  each  must  trust  others  for  the  effectual 
discharge  of  every  duty  of  civilized  life.  It  is  obvious,  that  where 
individuals  have  an  interest  in  being  truly  represented,  in  order  to 
enjoy  a  degree  of  confidence  and  esteem  proportioned  to 
[  xlviii  ]  their  *merits,  the  public  have  a  mutual  and  correlative  in- 
terest in  truly  knowing  where  trust  may  be  safely  and 
beneficially  reposed. 

It  is  plain,  that  members  of  the  same  community  have  an  interest 
in  mutually  knowing  the  characters  of  those  with  whom  they  are  to 
associate,  for  all  the  various  purposes  and  relations  of  civilized  life. 
The  common  imperfections  of  our  nature,  and  the  want  of  opportu- 
nity, to  a  great  extent  prevent  the  mass  of  mankind  from  acquiring 
a  just  knowledge  of  the  characters  of  each  other  by  every  man's  own 
observation  and  judgment ;  and  the  difficulty  is  further  increased, 
by  the  consideration  that  the  most  dishonest  and  worthless  members 
of  society,  at  the  same  time,  use  the  greatest  exertions  to  preserve 
a  fair  exterior. 

What  greater  encouragement,  on  the  other  hand,  could  be  afford- 
ed to  the  exercise  of  every  evil  propensity,  than  that  the  actions  of 
the  wicked  should  be  veiled  in  darkness,  and  that  the  good  and  the 
bad  should  mix  in  society,  without  the  possibility  of  discrimination, 
that  the  apprehension  of  disgrace  should  cease  to  operate  as  an  in- 
centive to  good  conduct,  and  that  the  honest  and  virtuous  part  of 
society  should  no  longer  be  put  on  their  guard  against  the  practices 
of  the  fraudulent  and  the  depraved  ? 


PRELIMINARY  DISCOURSE.  xlviii 

Let  it,  for  a  moment,  be  considered  what  would  be  the  moral  con- 
sequences of  a -general  prohibition  to  publish  the  truth.     There  is, 

perhaps,  no  other  feeling  so  strong,  so  universal,  and  so  influential, 
as  it  were,  on  the  actions  of  mankind,  as  the  love  of  reputation. 
That  laws,  without  morals,  are  vain  and  unprofitable,  is  an  ancient 
position,  which  has  been  amply  confirmed  by  the  experi- 
ence "of  every  age  and  every  country  ;  thai  mere  abstract  [  'xlix  ] 
moral,  or  even  religious  principles,  unassisted  by  the 
dread  of  censure,  would  be  insufficient  motives  to  good  conduct  in 
lect  of  the  moral  but  undefined  duties  of  Bocial  life  is  equally 
certain. 

What  are  the  great  practical  restraints  which  tend  to  the  obf 
ance  of  legal  and  moral  duties  in  a  state  of  society  ?  Within  the 
narrow  sphere  of  the  municipal  law,  men  may  lie  deterred  negative- 
ly from  doing  evil,  it  may  be,  in  some  few  instances,  compelled  to 
do  positive  good,  by  the  apprehension  of  penal  consequences,  suffi- 
ciently certain  and  severe  to  enforce  obedience. 

Religious  and  moral  principles,  on  the  other  hand,  tho  ugh  uni- 
versal as  rules  of  conduct,  want  the  aid  of  temporal  and  immediate 
inducements  to  their  observance.  There  is,  in  fact,  a  large  portion 
of  mankind,  which,  beyond  the  mere  limits  of  absolute  and  peremp- 
tory laws,  scarcely  owns  any  other  restraint  than  the  fear  of  public 
censure  and  its  consequences.  But  the  love  of  fame,  reputation, 
and  character,  is  a  motive  of  human  conduct  as  powerful  as  it  is 
universal,  extending  to  every  action  which  can  be  the  occasion  of 
praise  or  of  blame,  to  all  ranks  and  conditions, — who  is  free  from 
its  mighty  influence  (a)  ? 

Its  operation  is  co-extensive  with  the  moral  law,  whilst  its  in- 
ducements are  of  a  present  and  powerful  nature  ;  on  the  one  hand^ 
promising  temporal  prosperity  ;  on  the  other,  threatening  destitu. 
tion,  disgrace,  and  ruin. 

*To  reject  the  moral  aid  arising  from  a  feeling  so  uni-  [  "1  ] 
vcrsal  and  so  strong,  that  it  may  well  seem  to  have  been 
conferred  in  order  to  adapt  us  to  a  -tale  of  society,  would  be  no 
better  than  an  extravagant  and  irreparable  waste  of  moral  power 
which  might  have  been  most  usefully  and  beneficially  applied  to 
public  advantage. 

It  were,  however,  to  regard  the  operation  of  this  great  principle 
in  a  very  limited  and  confined  view,  were  its  influence  to  be  consid- 

(a)  Quid  philosophi  nostri  >  nonne  in  bis  libris  ipsis  quos  scribunt  Je  contcmnenda 
gloria  sua  nomina  inscribunt  ? 


1  PRELIMINARY  DISCOURSE. 

crcd  merely  in  reference  to  the  immoral  and  unprincipled ;  the 
policy  is  well  warranted  by  experience,  which  subjects  even  the  best 
and  most  enlightened  of  mankind  to  its  powerful  control. 

The  fear  of  censure  may,  in  effect,  be  regarded  as  a  moral  force, 
which  operates  strongly,  constantly,  and  uniformly  to  the  public 
good,  in  opposition  to  base  and  unworthy  motives  ;  the  best  are  not 
above  (&),  and  even  the  very  worst  are  scarcely  below,  its  saluta- 
ry influence. 

To  prohibit  all  communications  concerning  those  actions  of  man- 
kind which  deserve  censure,  would  be  to  make  every  bad  man  pass 
current  for  a  good  one,  to  provide  a  mask,  under  which  every  prof- 
ligate and  designing  hypocrite  might  practise  with  security  on  the 
innocent  and  the  unwary,  it  would  be  to  repeal  one  of  the  great 
moral  penalties  against  vice,  the  reprobation  of  the  just,  and  con_ 
sequent  exclusion  from  their  society  ;  it  would  be  to  offer  the  high, 
est  possible  premium  for  the  encouragement  of  hypocrisy,  to  efface, 
as  far  as  possible,  all  exterior  distinctions  between  vice 

*li  "  and  *virtue,  and  to  mix  and  confound  together  the  virtu- 
ous and  the  vicious  to  the  common  detriment  of  all  (c). 

Another  objection  to  the  admitting  the  action  for  damages,  where 
the  communication  is  true,  must  be  confined  to  those  cases  where  the 
municipal  law  annexes  any  legal  quality  or  efficacy  to  character,  as 
the  law  of  England  does,  where  it  admits  evidence  of  good  char- 
acter, as  tending  to  diminish  the  probability  of  guilt  on  a  trial  for 
a  crime.  It  would  be  in  the  highest  degree  inconsistent  and  absurd, 
that  the  law  should,  in  the  first  place,  secure  to  every  man  a  good 
character  whether  he  really  deserved  it  or  not,  and  should,  in  the 
next  place,  make  that  good  character  to  operate  as  evidence  of  his 

(b)  Negligere  quid  de  se  quisque  sentiat  nou  solum  arrogantis  est  sed  etiam  omnino 
dissoluti.     Cic.  de  Off.  1. 

(c)  It  may  further  be  observed,  although  it  seems  to  be  unnecessary  to  dwell  on  the 
subject,  that  if  a  remedy  in  damages  were  to  be  awarded  where  the  imputation  is  true, 
part  would  be  given  in  respect  of  the  plaintiff  's  own  delinquency,  for  the  truth  of  the 
fact,  as  well  as  the  mere  publication  of  it,  have  concurred  in  effecting  ihe  privation,  and 
thus  the  complainant  would  be  allowed  to  make  gain  of  his  own  wrong.  It  is  plain,  also, 
that  damages  ought  not  to  be  given  commensurate  with  the  privation,  for  that  was  the 
proper  consequence  of  the  plaintiff 's  misconduct,  and  might  have  followed,  though  the 
fact  had  not  been  disclosed  by  the  defendant;  it  ought,  in  justice,  to  be  proportioned  to 
the  probability  that  the  wrongdoer  would  otherwise  have  enjoyed  impunity.  If  A.  were 
to  commit  a  crime,  and  B.  were  to  publish  the  fact,  in  consequence  of  which  A.  suffered 
loss  and  imprisonment,  it  would  manifestly  be  unjust  that  B.  should  make  full  compen- 
sat  ion  to  A.  for  that  consequence,  where  a  great  probability  existed  that  the  same  conse- 
quences would  have  followed  from  inquiry  and  deteetion  in  the  ordinary  course  of  justice. 


PRELIMINARY  DISCOURSE.  li 

innocence.     In  strictness,  indeed,  general  reputation,  as  to  character 
in  society,  would  cease  to  exist,  as  soon  as  mankind  were 
enjoined  to  observe  "perpetual  silence,  as  to  all  which         'lii 
any  member  of  that  society  had  done  amiss. 

Cases  of  hardship  may  -till  be  urged  where  no  public  benefit  can 
arise  from  exposure,  and  where  the  suffering  party  is  deprived  of 
advantages  which  he  might  legally  have  enjoyed.     For  instance, 
where  a  delinquent  has,  by  many  years  of  penitence  and  good  con- 
duct, retrieved  his  cli  in  society,  to  give  a  wanton,  unneces- 
sary, and  renewed   publicity  to  the  circumstances  of  his  offeni  •. 
whilst  it  would  overwhelm   bim  with   disgrace  and  ruin,  might  bo 
productive  of  no  real  benefit  to  the  public.     And  it  may  be  urged, 
that  the  affording  a  possibility  to  those  who  have  acted  criminally, 
of  retrieving  their  errors  and  reinstating  themselves  in  society  by  a 
course  of  good  conduct,  is  to  hold  out  a  temptation  favorable  to 
the  interests  of  morality.     To  a  certain  extent,  and  in  a  moral  point 
of  view,  such  observations  arc  well  founded  ;  they  afford,  however, 
too  uncertain  and  indefinite  a  foundation  even  for  a  particular  and 
limited  exception  to  a  general  rule,  still  less  do  they  warrant  a  total 
rejection  of  that  rule.     How  could  such  an  exception  be  limited 
and  defined  ?     How  many  years  of  abstinence  from  crime,  or  even 
of  positive  good  conduct,  shall  be  sufficient  to  purify  the  tainted 
reputation  of  a  criminal  ?     At  what  period  shall  the  law  ordain  that 
his  misconduct,  though  not  forgotten,  shall  no  longer  be  mentioned, 
and  ever  after  enjoin  perpetual  silence,  under  the  penalty  of  an 
action  for  damages,  to  which  truth  shall  afford  no  answer  ?     Must 
not  the  period  be  proportioned  to  the  nature  and  heinousness  of  the 
offence  ?     Were  such  a  limitation  practicable,  would  not 
many  a  villain  derive  a  sanction  and  protection  from  *the      [  *liii  ] 
law,  though  his  vices  were  latent,  not  eradicated,  and 
would  not  numerous  opportunities  of  doing  harm  be  afforded  by  im- 
posing silence,  which  would  have  been  excluded  by  exposure.     It  is 
in  all  cases  dangerous,  frequently  fallacious,  to  draw  general  conclu- 
sions from  cases  of  individual  hardship;  in  the  present,  it  may  well 
be  questioned,  whether,  even   in  the  particular  instances  adduced 
as  examples,  the  community  would  derive  no  benefit  from  publicity, 
and  whether  a  delinquent,  under  any  circumstances,  or  at  any  time, 
has,  in  point  of  moral  justice,  a  claim  to  be  placed  in  the  same  >itua- 
tion,  as  to  character,  wifcfc  those  who  have  never  offended. 

It  may,   perhaps,   be  objected,  that  several   of  the   arguments 
which  have  been  thus  used  in  support  of  the  general  position,  that 


liii  PRELIMINARY  DISCOURSE. 

the  publication  of  truth  can  in  no  case  warrant  an  action  for  dama- 
ges, assume  that  the  complainant  is  in  law  or  morals  a  delinquent, 
but  that  it  frequently  happens  that  a  man's  interests  may  be  seri- 
ously affected,  and  his  comforts  and  happiness  greatly  diminished 
by  the  publication  of  that  which  is  true,  but  which  is  not  imputable 
to  him  as  a  fault.  This  may  readily  be  admitted,  and  it  may  be 
added,  that  a  man  sins  greviously  against  morality,  who,  for  the 
purpose  of  creating  misery,  publishes,  concerning  another,  even  that 
which  is  true  ;  but  it  is  to  be  recollected,  that  the  question  at  pres- 
ent is  not  as  to  the  moral,  or  even  legal  delinquency  of  one  who 
publishes  the  truth,  with  a  malicious  design  to  create  mischief,  but 
whether  the  party,  concerning  whom  nothing  more  than  the  truth  is 
published,  has  such  a  right  to  privacy  and  concealment,  as  shall, 

even  in  point  of  reason  and  natural  justice,  entitle  him  to 
[  *liv  ]     a  compensation  in  damages  from  one  who  publishes  *the 

fact.  Now,  it  may  be  observed,  in  addition  to  any  argu- 
ments derived  from  considerations  of  external  policy  and  regarding 
the  question  merely  in  reference  to  the  right  to  civil  remuneration, 
that  if  any  injury  or  inconvenience  accrue  from  publicity,  in  such  a 
case,  it  must' consist  either  in  a  mere  injury  and  annoyance  to  the 
feelings  of  the  complainant,  from  a  sense  of  wounded  delicacy,  or 
in  the  intercepting  and  preventing  some  collateral  benefit,  which, 
but  for  the  publication  of  the  fact,  would  have  accrued  to  the  party 
whom  it  concerns.  In  the  first  place,  a  mere  injury  to  the  imagina- 
tion or  feelings,  however  malicious  it  may  be  in  its  origin,  or  pain- 
ful in  its  consequences,  is  not  properly  the  subject  of  a  remedy  by 
an  action  for  damages  ;  such  offences  being  unconnected  with  any 
substantive  right,  are  incapable  of  pecuniary  admeasurement  (d)  and 
redress  ;  they  admit  of  no  exact  definition,  and  therefore,  to  extend 
a  remedy  to  such  injuries  generally,  would  be  productive  of  great 
uncertainty  and  inconvenience,  and  open  far  too  wide  a  field  for 
litigation  (e).  In  the  next  place,  it  seems  to  be  clear,  that  a  party 
who  acquires  an  advantage  by  concealing  the  truth,  which  he  could 
not  have  attained  to  had  he  divulged  it,  so  far  is  guilty  of  fraud  in 

(d)  To  such  an  extent  is  this  principle  carried,  by  the  law  of  England,  that  most  of- 
fensive, provoking,  and  insulting  charges  may  be  made  orally,  which  are  not  the  subject 
of  an  action,  even  though  they  are  absolutely  false.  To  charge  a  man  with  mere  im- 
moral conduct,  however  gross,  would  not  be  actionable  in  the  absence  of  special  damage, 
though  the  imputation  were  falsely,  as  well  as  maliciously  made,  see  above,  xxxi. 
note  («). 

(e)  See  above,  p.  xxviii. 


PRELIMINARY  DISCOURSE.  lit 

the  concealment,  that  he  cannot,  upon    any    "principle, 

claim  a  right  to  acquire  that   benefit,  and  therefore,  can-     [  *lv  ] 

not  complain  that  he   ia  injured  by  a  publication  of  the 

truth. 

By  way  of  illustration,  let  it  be  supposed  that  a  banker,  being 
reduced  to  the  brink  of  bankruptcy  by  unavoidable  misfortunes,  a 
friend,  in  ignorance  of  his  circumstances,  offers  to  deposit  in  his 
hands  a  large  sum  of  money,  but  that  the  friend  ie  prevented  from 
doing  so,  in  consequence  of  a  report  from  some  third  person  that 
the  banker  is  insolvent.  Ought  the  latter  to  recover  damages? 
What  has  he  lost  but  an  opportunity  of  committing  a  gross  decep- 
tion, by  receiving  the  money  under  a  fraudulent  concealment  of  his 
circumstances  ;  if  he  could  not  honestly  have  availed  himself  of  the 
other's  ignorance  of  the  real  state  of  his  affairs,  it  is  obvious,  that 
he  has  not  sustained  any  moral,  still  less  any  legal  injury  from  the 
disclosure. 

A.gain,  suppose  that  one  who  labored  under  a  latent  and  personal 
defect,  or  who  was  subject  to  some  hereditary  malady  or  disease, 
was  prevented  from  forming  an  advantageous  marriage  by  the  dis- 
closure of  the  secret  by  a  third  person,  though  a  publication  of  the 
truth  might  be  most  offensive  to  the  feelings,  yet  could  it  be  said  that 
any  advantage  had  been  lost  to  which  the  complainant  was  morally 
or  conscientiously  entitled  ?  Once  more,  if  a  patron  were  to  offer 
preferment  to  a  party,  under  the  erroneous  supposition  that  he  was 
a  relation,  when,  in  fact,  the  party  to  whom  the  offer  was  made  well 
knew  that  he  was  no  relation,  and  that  the  offer  resulted  from  mis- 
take, would  it  not  be  dishonorable  and  immoral  to  avail  himself  of 
an  intended  kindness,  which  was  founded  in  mere  error  ? 
In  these  and  all  similar  cases,  where  the  'advantage  'lvi  ] 
could  not  have  been  obtained,  but  through  the  medium 
of  fraud,  morally  speaking,  it  seems  to  be  obvious  that  no  interest 
exists  which  can  be  noticed  even  as  a  moral,  still  less  as  a  legal 
right.  To  recognize  such  rights,  would  as  little  consist  with  the 
principles  of  morality  as  of  political  expediency,  for  the  natural 
and  obvious  effect  would  be  to  lend  a  legal  sanction  and  encourage- 
ment to  the  commission  of  fraud,  by  rendering  the  practice  more 
easy,  and  by  affording  a  premium  to  the  party  who  attempted  it, 
even  in  case  of  failure  (/)• 

(/ )  In  one  instance,  at  least,  the  presumption  of  solvency,  on  the  part  of  a  purchaser 
as  the  tacit  condition  of  the  contract,  is  recognized  by  the  law  of  England.  Every  man 
(according  to  Lord  Kenyon,)  who  contracts  to  supply  another  with  goods,  acts  on  the 


lvi  PRELIMINARY  DISCOURSE. 

Finally,  to  make  tho  truth  operate  merely  as  a  qualified  defence, 
never  singly,  but  occasionally,  in  conjunction  with  other  circum- 
stances, were  the  practice  even  more  consistent  with  the  principles 
of  natural  justice  than  it  seems  to  be,  would  be  productive  of 
great  inconvenience  (§•).      Happily,   the  ancient   and   undeviating 

presumption,  that  that  other  is  in  a  Condition  to  pay  for  them;  and,  therefore,  when  the 
condition  of  the  consignee  is  altered  at  the  time  of  delivery,  and  he  is  no  longer  capable 
of  performing  hie  part  of  the  contract,  honesty  and  good  faith  require  that  the  contract 
should  be  rescinded:  and  on  this  footing  that  learned  judge  placed  the  doctrine  as  to  the 
right  of  seizing  goods  sold  to  a  bankrupt  or  insolvent,  when  the  vendor  is  able  to  do  so 
whilst  they  are  in  transitu,  before  they  have  actually  come  iuto  the  possession  of  the 
purchaser. 

(%)  Mr.  Borthwick,  in  his  late  excellent  work  on  the  Law  of  Libel  in  Scotland,  with 
a  very  natural  bias  in  favor  of  the  laws  of  his  own  country,  combats  the  position,  that 
the  truth  ought  to  be  an  absolute  bar  to  the  claim  for  damages,  with  great  force  and 
great  ability.  He  urges,  that  the  reason  given  by  Sir  VV.  Blackstone,  for  refusing  the 
action  for  damages  where  the  imputation  is  true,  viz.  that  the  public  are  benefited  by 
this  disclosure,  is  inconsistent  with  the  doctrine  of  the  law  of  England,  that  a  libel, 
though  true,  is  punishable  criminally.  Now,  certainly,  if  the  reason  for  denying  the 
civil  remedy,  in  such  a  case,  really  were  that  of  the  civil  law,  that  is  the  public  benefit 
resulting  from  the  publication,  there  would,  no  doubt,  be  ground  for  chai-ging  the  law  of 
England  with  inconsistency  in  this  respect;  that,  however,  is  not  the  reason,  or,  at  all 
events,  not  the  principal  reason  on  which  the  law  of  England  proceeds.  The  principle 
on  which  the  law  of  England,  in  such  cases,  denies  the  right  to  damages,  are  the  plain 
and  obvious  ones,  that  the  fraud  or  deceit,  which  is  of  the  essence  of  the  wrong,  is 
wanting;  that  no  man  can  have  a  right  to  recover  damages  in  respect  of  the  publication 
of  his  own  misconduct,  and  perhaps  even  more  generally,  that  no  one  can  have  a  legal 
right  or  interest  in  the  suppression  of  truth.  The  negation,  therefore,  of  the  civil  remedy 
is  perfectly  consistent  with  the  infliction  of  punishment,  the  public  may  be  injured  where 
the  individual  has  no  claim  to  damages.  If  a  man  were  to  wound  an  outlaw,  the  latter 
could  claim  no  damages;  and  yet  the  former  would  be  worthy  of  punishment,  for  the 
wanton  outrage  he  had  committed  against  the  public  peace.  Mr.  Borthwick  further  ob- 
serves, that  the  truth  of  the  charge  is  no  just  guage  of  the  injury  done  by  the  libel  or 
slander,  that  though  the  tradesman  is  proved  to  be  bankrupt,  or  the  physician  a  quack, 
great  injury  may  have  been  done  to  the  tradesman  or  physician,  by  the  information  being 
more  widely  circulated  than  it  otherwise  would  have  been.  The  answer  is,  that  the  de- 
nial of  the  remedy  by  the  law  of  England  is  not  founded  upon  the  supposition,  that  no 
harm  or  loss  has  accrued  from  the  publication  of  the  truth,  but  on  the  injustice,  or,  at 
least,  the  impolicy  of  permitting  the  party  who  has  sustained  the  loss,  of  recouping  it 
in  damages  from  one  who  has  spoken  merely  the  truth.  The  law,  in  such  cases,  admit- 
ting the  damnum  or  loss  to  have  been  sustained,  denies  the  existence  of  the  injuria,  the 
violation  of  any  right  which  the  plaintiff  had. 

Again,  Mr.  Borthwick  argues,  that  as  it  is  by  the  indiscretion,  or,  at  lea3t,  by  the 
malice  of  the  defender,  that  h'is  liability  is  to  be  judged  of,  although  the  truth  of  the 
charge  were  proved,  and  if  no  other  circumstance  but  the  truth  were  required  to  com- 
plete the  justification  of  the  defender,  he  might  be  absolved  from  the  action,  though  the 
greatest  degree  of  both  culpability  and  malice  had  actuated  his  conduct.  This  objection, 
on  the  score  of  inconsistency,  obviously  assumes,  that  the  law  of  England,  as  of  Ron^ 
and,  as  it  seems,  of  Scotland,  regards  the  animus  infamandi,  or  mens  rea,  as  of  the 


PRELIMINARY  DISCOURSE,  lvi 

*rule  of  the  English  law  on  this  point  has  protected  ae  *lvii  ] 
from  an  actual  and  intimate  knowledge  of  difficulties,  the 

essence  of  the  offence,  and  it  admits  of  two  answers;  1st,  the  law  of  England,  with  a 
■view  to  the  civil  remedy,  principally  regards  the  loss  or  damage  to  the  j  ue, 

and  not  the  contumely  of  the  act.  See  Wood's  Ins.  17,  and  Bnpra,  xxxi.  note  (a); 
intia,  vol.  1,  p.  in,  where  the  aet  is  wilful  and  noxious,  malice  is  but  a  mere  legal  infer- 
ence from  the  act,  in  the  absence  of  facts  which  constitute  an  absolute  or  qualified  justifi- 
cation, and,  in  many  instanoes,  an  absolute  justifi  -  from  the  mere  facts,  and 
malice,  however  in                ites  no  right  of  action. 

But,  2ndly,  even  where  the  malicious  or  oontumelious  intention  of  the  essence  of  the 
wrong,  there  would  be  no  inconsistency  in  repelling  the  action,  under  circumstances 
which,  for  reasons  of  intrinsic  policy,  warranted  the  exclusion.  There  cannot  be  a 
stronger  instance  to  prove  thi-.  or  one  which  ought  to  weigh  more  with  those  who  pro- 
fess to  adopt  the  civil  law,  than  that  afforded  by  the  civil  law  itself,  which,  though  it 
regarded  the  con  tunielious  intention,  as  the  very  gist  and  essence  of  the  action, 
civil,  as  well  as  criminal,  .-eons  to  have  considered  the  truth  of  the  imputation  to  be  in 
itself,  independently  of  the  question  of  intention,  a  decisive  bar.     . 

In  illustration  of  his  argument,  Mr.  Borthwick  cites  the  following  decision  of  the 
Parliament  of  Toulouse,  mentioned  in  the  Causes  Celebres,  vol.  6;  Histoire  du  Proces 
des  Sieurs  Saurin  &  Rousseau. 

"  Le  parliament  de  Toulouoe  a  decide  ainsi — unefillequi  auroit  mis  clai  cut 

au  jour  un  fruit  de  l'amour  a  qui  clle  auroit  conserve  la  vie,  pourroit  se  plaindre  en  jus- 
tice du  medisant  qui  reveleroit  son  deshonneur,  parceque  la  defamation  la  depouille  de 
l'honneur  dont  elle  jouissoit  par  an  faux  titrc,  m  us  qui  ne  fnisoit  tirt  a  persoune,  sa 
possession  etoit  legitime  avec  ce  titrt  colore.  Le  Fore  interne  s'accorde  encore  ici  avec 
lefore  externe." 

A  mendisant,  employed  professionally  and  confidentially,  reveals  the  dishonor  of  a 
young  unmarried  woman,  whom  he  has  secretly  delivered  of  the  fruitof  an  illicit  amour, 
the  court  decrees,  that  she  is  entitled  to  recover  damages  for  the  mere  defamation,  as 
contra-distinguished  from  a  wrong  done  by  the  breach  of  promise  or  professional  confi- 
dence,* for,  if  the  decision  were  founded  on  the  latter  ground,  it  would  n  !  into 
a  mere  question  of  contract  or  of  professional  duty,  and  would  be  too  much  limited  in 
its  circumstances,  to  be  valuable  as  an  illustration  of  a  general  principle.  For,  though 
the  law  were  to  award  a  remedy  in  such  a  case,  in  respect  of  the  breach  of  an  e.v 
or  implied  promise,  or  in  respect  of  the  violation  of  a  legal  and  professional  duty,  it 
would  still  decide  nothing  on  the  great  an  1  general  question,  as  to  the  right  to  damages, 
in  respect  of  the  promulgation  of  true  but  defamatory  matters. 

W  hat,  then,  is  t!  alleged  for  the  decision  ?     That  t lie  complain- 

ant being  in  posj  character  to  which  she  has  no  title,  the  law  ought  to  protect 

that  title  becau  of  it  injures  no  one.     But   may  not  m  har- 

acter  be  injurious  to  others,  may  it    not  enable  a  profligate  woman  to  form   OOnnec 
even  that  of  marriage  itself  and  thus  to  practice  a  cruel  deceit  under  the  mask  of  virtue; 
may  she  not.  under  the  same    folse   color,  be  enabled  to  contaminate  the  prinoip 
others  of  her  own  sex;  is  no  injur]  d..ne  in  c    ising  a  woman  of  abandoned  principleB 
to  be  received    and    accepted    into  the    bosom    ol  Son  of  unblen 

reputation.    But  e\en  admitting  that  the  character  injured  no  one,  does  it  follow  that  the 

*  By  the  Code  penal    of  Prance,    art.  858.  physi  ns,  midwives,   \e,  who 

reveal  secrets  confided  to    them  in  their  respsctive  capacities,  (except  iu  cases  where  the 
law  compels  them  to  the  contrary,)  are  liable  to  imprisonment. 

Vol.  I.  4 


lvii  PRELIMINARY  DISCOURSE. 

[  *lviii  ]  "reality  of  which  may  be  collected  from  the  experience 
of  others. 

law  ought  to  protect  it;  would  it  not  be  impolitic  to  give  protection  and  encouragement 
to  laxity  of  moral  conduct;  would  not  the  affording  it  he,  pro  tnnto,  to  remove  a  great 
and  efficacious  restraint  on  immorality,  the  dread  of  censure  and  exposure?  Again, 
how  can  a  false  title  to  character  give  a  real  title  to  damages  for  the  loss  of  that  char- 
acter ?  Let  us  suppose  that  one  of  the  most  injurious  consequents  that  can  result  from 
such  defamation  has  actually  been  occasioned  by  the  publication,  viz.  that  the  party  has 
lost  the  benefit  of  an  advantageous  marriage;  yet  what  legal  ground  of  complaint  can 
there  be  in  losing  that  which  could  not  have  been  gained  but  by  a  base  and  fraudulent 
concealment.  No  laws,  either  municipal  or  moral,  could  contemplate  any  right  or  in- 
terest in  a  contract  made  under  such  circumstances;  the  complainant  would  therefore 
have  lost  nothing  which  the  law  could  recognize  as  the  object  of  legal  protection.  She 
would,  in  effect,  have  lost  nothing  but  the  opportunity  of  doing  an  injury  by  means  of  a 
fraudulent  concealment  of  the  truth.  It  is  further  observed,  that  the  decision  is  in  con- 
sonance with  the  ftelings  (lefore  interne)  of  mankind.  The  feelings  of  individuals 
constitute,  however,  but  a  very  indifferent  forum  for  the  decision  of  cases  where  the 
judgment  is  liable  to  be  warped  by  the  particular  circumstances  in  opposition  to  the 
general  rules,  which  in  their  constant  and  uniform  application,  conduce  to  public  happi- 
ness. The  conduct  of  a  professional  man,  who  betrays  such  a  secret  is,  no  doubt,  most 
dishonorable,  unprofessional,  and  immoral,  such  as  is  calculated  to  excite  a  sense  of  the 
highest  indignation;  but  does  it  therefore  follow,  that  it  would  be  wise  to  award,  on  that 
account,  a  compensation  in  damages,  and  to  establish  a  general  precedent  on  the  par- 
ticular hardship,  without  any  consideration  of  the  general  principles  on  which  the  claim 
to 'damages  ought  to  be  founded  ?  Still  less  would  it  follow  that  a  remedy  ought  to  be 
given  against  one  who  had  published  the  fact,  without  being  guilty  of  any  breach  of 
professional  confidence. 

Besides,  it  is  easy  to  see  that  the  moral  sense  of  mankind  would  afford  no  general 
rule  for  the  exclusion  of  the  truth,  as  a  defence,  but  rather  the  contrary.  Let  it  be  sup- 
posed, for  instance,  that  the  complainant  had  been  guilty,  not  as  in  the  case  cited,  of  a 
single  deviation  from  the  paths  of  virtue,  but  that  she  had  led  a  life  of  vice  and  de- 
pravity in  a  distant  country,  would  not  the  moral  sense  of  society  condemn,  rather  than 
approve,  the  law  which  allowed  her  to  recover  damages  against  one  who  had  merely  put 
society  on  their  guard,  by  publishing  her  true  character?  Would  not  men  question  the 
wisdom  of  a  law  which  enabled  one  who  had  led  an  impure  and  profligate  life,  to  re- 
cover damages  for  a  reflection  on  her  chastity  ?  Is  any  man's  mind  so  constituted  as  to 
think  it  just  or  reasonable  that  a  murderer  should  recover  damages  from  one  who  had 
published  his  guilt,  even  maliciously  r 

It  follows,  then,  that  if  the  mere  moral  sense  does  not  always  approve  such  a  defence, 
it  is  at  all  events,  far  from  sanctioning  the  general  exclusion.  Where  then  is  the  line 
to  be  drawn  ?  Mr.  Borthwick  concludes  his  argument  with  these  observations. — "  If  a 
person  is  not  placed  in  one  of  the  situations  which  are  called  privileged,  or  unless  he  can 
show  that  what  he  said  was  uttered  for  the  purpose  of  promoting  conviviality  or  amuse- 
ment, or  in  consequence  of  passion,  inebriety,  or  such  temporary  excitement ;  and  yet 
shall  be  exculpated  in  every  case  from  an  action  of  damages,  for  having  defamed  an  in- 
dividual, merely  by  proving  that  his  expressions  were  true,  there  seems  for  the  reasons 
above  assigned,  not  only  to  be  an  inconsistency  in  the  application  of  the  legal  reason- 
ing that  supports  such  a  doctrine,  but  the  practical  consequence  would  seem  to 
lead  to  no  other  alternative  than  to  pass  with  impunity  every  act  of  cold-blooded  cal- 
umny, provided  only  that  it  be  grounded  on  a  true  statement,  however  prejudicial  that 


PRELIMINARY  DISCOURSE.  Mii 

*It  may  justly  be  observed,  that  the  principle  of  moral      [  *lix 
justification  is  applicable  only  where  the  motive  #of  com-     [  'lx   ] 

statement  might  be  to  the  sufferer,  and  however  unprovoked,  officious,  and  malevolent 
it  iiii^ht  be  on  the  part  of  its  author." 

Upon  these  litter  comments,  it  may  suffioe  to  remark,  that  the  supposed  inconsistency 
of  the  doctrine  of  the  English  law  on  this  subject  having  been  already  observed  on,  it 
would  fie  superfluous  to  reiterate  any  ol  servationa  on  tl  ISut  it  is  to  be  most 

emphatically  observed,  that  the  pra  sequence  allei."- 1  I  ine, 

of  the  law  of  England,  that  truth  shall  be  a  bar  to  the  aotion  for  damages,  by  no 
means  follows      It  is  to  be  rt  ,  that  the  criminal  and  civil  wrongs  are  not  mixed 

and  complicated  with  each  other  by  the  law  of  England,  as  they  arc  both  by  the  civft 
law  and  the  law  of  Scotland,  and  that,  though  the  law  of  England,  with  cool,  c  inl  .- 
and  steady  adherence  to  a  general  principle,  universally  repels  the  action  for  dam 
where  the  imputation  is  true  ;  yet  that  the  same  law  visits  every  malicious  libeller  with 
penal  censures,  without  regard  to  the  truth  or  falsity  of  the  libel.  It  m  iy,  indee  I,  readi- 
ly be  admitted,  that  a  man  may  indulge  a  wicked  and  malicious  spirit,  in  publishing 
the  truth,  without  incurring  any  liability  to  damages,  according  to  the  law  of  Engl  uid  : 
but  what  is  the  sum  and  substance  of  this  objection  ?  simply  this,  that  the  law  does  not 
award  damages  to  be  recovered  in  respect  of  an  imputation  truly  made,  merely  because 
it  has  been  maliciously  and  immorally  made.  This  ground  of  complaint  against  the 
law,  taken  in  the  abstract,  avails  nothing  ;  it  is  impossible  that  the  municipal  should 
be  co-extensive  with  the  moral  law,  so  as  to  subject  the  author  of  every  malicious  and 
immoral  act,  to  a  civil  action  for  damages.  The  very  extent  to  which  such  an  objection 
might  be  pushed  in  effect  refutes  it  ;  if  the  suffering  of  a  guilty  party  from  publicity 
and  cold-blooded  malice  on  the  part  of  the  publisher,  give  a  claim  to  compensation,  it 
ought  to  be  given  even  where  a  malicious  party  prosecutes  and  convicts  the  offender  a  - 
cording  to  law,  or  publishes,  that  such  a  conviction  has  actually  taken  place,  for  many 
cases  might  be  put  where  such  a  proceeding  would  be  harsh,  vindictive,  and  pppressive. 
Neither  is  there  any  inconsistency  in  the  application  of  the  general  principle  of  English 
law  to  the  particular  case,  for  the  ground  of  compensvtiou  is  loss  <<  ,  in  rospect 

of  a  fraudulent  or  negligent  misrepresentation.  The  question  then  is,  whether  that 
general  principle  be  a  correct  one,  and  whether  the  truth  of  the  fact  ought  to  repel  an 
action  for  defamation,  without  regard  to  the  malice  of  the  publisher,  and  this/as  Ins 
been  seen,  is  an  important  question,  to  be  determined,  not  by  a  few  instances  of  hard- 
ship which  may  fall  on  penitent  offenders,  but  on  general  c  insiderations  of  public  poli- 
cy. Those  oonsi  lerations  seem  to  weigh  strongly  in  favor  of  making  truth  an  aba 
bar  to  compensation,  both  because  the  falsity  of  the  charge  is  the  true  principle  of  civil 
liability,  and  because  it  would  be  impolitic  too  nicely  to  scrutinize  the  motives  of  those 
who  had  exposed  delinquents,  and  impracticable  to  lay  down  definite  rules,  which  would 
admit  such  a  remedy  in  cases  of  hardship  and  malice,  without,  at  the  a  ime  time,  afford- 
ing protection  and  encouragement  to  those  guilty  of  the  most  heinous  and  detestable 
crimes.  If  this  be  an  error  in  our  national  jurisprudence,  it  ifl  one  which,  to  a  great, 
though  not  perhaps  the  same  extent,  is  attributable  to  the  laws  of  Athens,  Rome,  and 
modern  France. 

Assuming  that  the  policy  of  the  English  law,  in  this  respect,  is  doubtful  ;  what  is 
the  alternative  proposition  ?  not  to  reject  the  truth  as  immaterial  to  the  defence  ;  that 
is  not  contended  for,  but  that  the  truth  shall  be  available  with  certain  other  circum- 
stances, which  ingredients  shall,  in  their  union,  supply  a  full  and  complete  justification. 
Now,  the  very  instance  of  Scotland  herself,  whose  laws  on  this  subject  Mr.  Borthwiok 
has  with  great  learning  and  great  ability  both  expounded  and  defended,  affords  a  very 


lx  PRELIMINARY  DISCOURSE. 

munication  is  a  benevolent  and  sincere  one,  and  that  to 
*lxi  ]      publish  even  the  truth,  with  a  malicious  intention  *to  cre- 

strong  illustration  of  the  difficulty  of  establishing  precise  and  definite  rules  on  such 
principles.  Mr.  Borthwick,  with  great  candor,  observes,  that  "  lawyers  of  the  greatest 
eminence  have  differed,  and  may  continue  to  differ,  from  each  other  on  this  subject, 
some  of  whom  have  thought  that  our  law  (i.  e.  of  Scotland)  has  not  yet  arrived  at  that 
degree  of  maturity  which  can  put  us  in  possession  of  a  general  rule.  Future  decisions 
will  remove  this  difficulty.'''  Certainly,  the  decisions  of  the  Scotch  courts,  which  Mr. 
Borthwick  has  collected,  conflict  too  much  to  yield  any  certain  and  definite  rule  ;  and 
it  is  observable,  that  in  two  of  them,  viz.  Scott  v.  Buillie,  Borth.  268,  and  Fife  v.  Fife, 
ib.  272,  the  plea  of  the  truth  was  allowed  to  constitute  a  full  defence.  In  the  former 
case,  the  defender,  Mrs.  Baillie,  had  publicly,  at  an  assembly,  asserted,  that  the  pursuer 
had  for  a  long  time  been  a  woman  of  gallantry.  Mr.  Borthwick  observes,  that  this  case 
was  afterwards  disapproved  of,  in  Ross  v.  Mackerrell,  (Borth.  349.)  ;  in  that  case  the 
president  took  occasion  to  say,  that  in  the  case  of  Chalmers,  widow  of  Scott  v.  Baillie, 
no  proof  of  the  Veritas  convicii  should  have  been  allowed,  but  that  there  was  no  general 
rule  upon  the  subject.  In  the  case  of  Fife  v.  Fife,  (Borth.  272,)  Fife  pursued  one  of 
her  neighbors  for  damages,  for  saying  that  she  kept  a  house  of  bad  fame  ;  the  defender 
averred  that  it  was  true.  A  proof  was  allowed,  and  having  proved  the  fact  accordingly 
the  defendant  was  assoilzied.  Mr.  Borthwick  observes,  that  in  this  case  the  proof  of 
Veritas  was  properly  admitted,  because  it  was  a  public  duty,  not  a  malicious  act,  to  ex- 
pose the  pursuer.  It  would,  however,  be  very  difficult  to  establish  any  definite  limit 
on  the  distinction  between  those  offences  which  it  was  a  public  duty  to  expose,  and,  con- 
sequently, where  the  Veritas  convicii  ought  to  be  allowed,  and  those,  in  the  exposure  of 
which  the  public  had  no  interest.  Mr.  Borthwick  also  suggests  that,  even  admitting 
Chalmers'  case  to  be  an  authority,  as  far  as  oral  slander  is  concerned,  yet  it  is  not  an 
authority  in  case  of  libel  which  differs  essentially  from  oral  slander  ;  and  he  refers  to 
the  law  of  England  in  support  of  this  distinction,  observing,  that  it  was  not  until  the 
middle  of  the  last  century  permitted  to  a  defendant  to  justify,  in  the  case  of  written 
slander,  (citing  Lord  Hard  wick's  dictum,  in  the  Kins  v.  Roberts,  Selvvyn's  N.  P.  986.) 
The  notion,  however,  that  by  the  law  of  England  a  justification  of  the  truth  cannot  be 
pleaded  to  a  civil  action  for  a  libel  has  long  been  exploded,  and  not  only  so,  but  the 
soundness  of  the  distinction  of  the  law  of  England,  in  considering  that  to  be  actionable, 
when  written,  which  would  not  have  been  so  if  merely  spoken,  has  been  questioned  by 
some  of  the  best  English  lawyers.  And  though  that  doctrine  of  English  law  is  now 
too  firmly  established  to  be  shaken,  there  can  be  no  doubt  that  it  is  an  anomaly  which 
has  arisen  from  adopting  the  civil  law  doctrine  as  to  libels,  according  to  which,  personal 
indignity,  insult,  and  contumely,  are  the  proper  foundation  of  the  action,  whilst,  ac- 
cording to  the  ancient  principles  of  English  law,  the  loss  or  damage  to  the  party  grieved 
either  actual  or  presumed,  is  the  real  foundation  of  the  civil  remedy.  Mr.  Borthwick, 
indeed,  as  has  already  been  observed,  very  justly  attributes  much  of  the  uncertainty 
which  has  prevailed  on  the  subject  of  the  Veritas  convicii,  as  well  in  England  as  in 
Scotland,  to  the  conflicting  and  unsatisfactory  opinions  of  the  commentators  of  the  Ro- 
man law.  Borth.  p.  244.  Be-this  as  it  may  it  is  very  difficult,  on  any  certain  princi- 
ples, to  admit  the  Veritas  convicii  as  an  absolute  bar  to  oral  slander,  and  yet  to  reject  it 
as  an  answer  to  a  libel. 

It  may  be  proper  to  observe,  in  this  place,  that  Mr.  Borthwick,  in  the  course  of  his 
concluding  remarks,  seems  to  have  assumed  (agreeably  to  the  civil  law,  probably  also 
to  the  law  of  Scotland,)  that  proof  that  a  defendant  uttered  the  defamatory  matter, 
complained  of  for  the  purpose  of  promoting  conviviality   or  amusement,  or  in  conse- 


PRELIMINARY  DISCOURSE.  lxi 

ate  misery,  is,  in /b/v>  conscienHa,  an  immoral  act;  this 

is  true,  but  this  is  one  of  the  munerous  cases  'where  it     [  lxii  ] 

quence  of  passion,  inebriety,  or  such  temporary  excitement,  would,   by  the  law  of  Eng- 
land, furnish  a  defence  to  the  action    for  dan  law  of  England,  however,  does 
not  sanction  Baoh  a  dootrine,  and                i  well  as  on  many  othei  ■•ell 
boast  a  superiority  over  that  code  which  our  anoeel                                        I  '  adopt   Upon 
what  principles  of  reason  or  natural  justice,   or  even  of  artificial  policy,  is  a   man  to 
be  excused  from  answering   in   damages,    where  he  has   knowingly   and   wilfully  oc- 
casioned  mischief  to  another,  because  he  did  it  for  his  own  amusement,                lehe 
was  drunk,  or  excited  by  passion.      Is  it  for  the  law  to  define  the  rights  of  individuals, 
but  when  defined,  nothing  can  be  more  clear,  in  point  of  reason  and  natural  justice, 
than  that  a  remedy  OUgk4   to  be  given  in  respect  of  every  wilful  invasion  or  aggrt- 
of  those  rights.     It  i-  doI  plain,  tint  when  the  right  to  reputation  an  1  character  is  once 
recognized  by  the  law,  every  wilful  redemption  of  a  character  ought   to  confer  a  title  to 
damages,  as  well  as  in  every  other  instance  of  the  violation  of  a  recognized  legal  right. 
What  legal  excuse  or  justification  then  can  arise  from   the  consideration,  that  a  man  in 
depriving  another  of  character,  by  casting  the  most  odious  imputations,  on  him,  did  it 
because  he  was  in  jest,  or  was  drunk  ?     Though  to  himself  it  may  be  matter  of  j  -t,  to 
the  unfortunate  object  of  merriment,  the  calumny   may  be  utter  ruin  ;  though  uttered 
in  joke,  the  charge  may  be  reported  and  believed  in  earnest  ;  and  intoxication,  so  far 
from  taking  away  the  sting  of  the  calumny,   may,  in  some  cases,  according  to  a  vulgar 
adage  even  supply   an  inducement  to  belief.     Finally,  in  support  of  the  consistency  of 
the  superior  merit  of  the   law   of   Scotland,    and   of    its   consistency  with  the    abstract 
principles  of  justice  and  equity,  Mr.  Borthwick  refers   to  Mr.  Fox's  speech  on  the  dis- 
cussion, in  the  House  of  Commons,  on  the  Libel  Bill,  May  'JO,  1701.  Parliamentary  His- 
tory, vol.  xxix.  p.  575.       That  celebrated  orator    and    statesman,  in  his  speech  on  that 
occasion,  admitted,  that  "  there  certainly  were  cases  in  which  truth  would  not  be  a  jus- 
tification, but  an  aggravation.      Suppose,  for  instance,  a  man  had   any    personal  defect 
or  misfortune  :  any  thing  disagreeable   about  his  body  ;  or  was  unfortunate  in  any  of 
his  relations  ;  ami  that  any  person  went  about  exposing   him  on  those  accounts,  for  the 
purpose  of  malice  ;    and    that  all    those   evils  were,    day  after  day,  brought  forward  to 
make  a  man's  life  unhappy  to  himself,  and  tending  to  hold   him  out  as  the  object  of  un- 
deserved contempt  and  ridicule  to  the  world,   which   was  too  apt  to  consider  individuals 
as  contemptible  for  their    misfortunes,  rather    than   odious   for   their  crimes  and  %i     -  j 
would  any  man  tell  him,  that  in  cases  of  that  sort,  the  truth   v.  is  not  rather  an  a 
ration  ?"      The  justice  of  these   observations  is  Undeniable;  the   truth    of  facts,  which 

impute  no  blame  to  a  party,  who  may,  nevertheless,  be  annoyed  and    irritated  by  the 
wanton  publication  of  those  tacts,  can  afford  no  justificatA  to  the  igg    »a     in  ■  moral 

point  of  view.     Truth,  as  well  as  falsehood,  may    be  used  BS  the  instrument  of  malice  ; 
and,  consequently,  where  the   object    is  to  restrain  such   contumelious    reflection! 
abuse'  by   penal   censures,  it  would   be   absurd  to   make  their   truth  a  defence   upon  a 
criminal  charge.     It  was  in  reference  to  penal  restraints,  that  the  observations  cited  by 
Mr.  Borthwick  were  made  by  Mr.  Fox,  and  upon  this  poinf  the  1  kW  of  Englan  I 
with  that  of  Scotland.    The  controversy  is  upon  the  question,  what  el  -    to  be 

attributed  to  the  truth  of  the  imputation,  where  the  OOmpl  linant  demands  a  COfRJ 
Hon  in  'lamages;  here  it  cannot  be  said  that  the  truth    is   an  aggravation  ;  it  would  be 
as  contrary  to  the   plainest   principles  of  natural  justice  and   policy,  as  it  would 
pugnant  to  the  common  sense  and  feelings  of  mankind,  to  say  that  a  guilty  man  ought 
to  recover  larger  damages  for  the  mere  assertion  of  his  guilt,  than  an  innocent  man  ought 
to  do,  in  respect  of  unmerited  obloquy,  where  the  moral,  as  well  as  legal  wrong,  was 


lxii  PRELIMINARY  DISCOURSE. 

is  questionable  whether  legal  can  be  made  to  coincide 
[  lxiii  ]     with  moral  boundaries.     It  is  frequently  difficult  to  *as- 

certain  the  true  motive  of  an  act  which,  in  its  nature, 
lxiv  ]     may  be  attributable  either  to  a  good  or  bad  motive  ;  *in 

such .  case,  it  may  be  far  better  policy  at  once  to  pre- 
[  *lxv  ]     sume  charitably  in  favor  of  innocency  of  intention,  *than 

to  open  a,  field  for  litigation.  The  convenience  is  great, 
[  *lxvi  ]    on  the  one  hand,  of  laying  down  a  precise  and  *general 

rule  ;  the  practical  inconvenience  on  the  other,  of  afford- 
[  *lxvii  ]    ing  protection  to  a  malicious  act  is  small,  when  *the  act, 

in  its  own  general  nature  and  effect,  is  beneficial.  At 
all  events,  the  effect  of  the  objection  is  merely  to  deprive  the  au- 
thor of  the  communication  of  his  moral  defence,  and  leaves  the 
question  upon  considerations  of  general  policy  and  convenience, 
just  as  it  stood  before. 

In  the  next  place,  that  some  communication  of  the  noxious  and 
calumnious  matter  to  a  third  person,  is  essential  to  the  injury,  nec- 
essarially  results  from  the  very  notion  of  damage  whether  it  be  actu- 
al or  presumed,  though  the  extent  and  magnitude  of  the  injury  may 
depend  greatly  on  the  nature  of  the  publication.  A  publication,  by 
writing  or  printing,  may,  from  its  widely  extended  circulation  and 
its  permanency,  be  far  more  injurious  than  one  which  consists  mere- 
ly in  oral  discourse.  A  communication  to  one,  or  a  few  individuals, 
may  be  far  less  injurious  than  if  the  calumny  were  to  be  uttered 
publicly  in  the  presence  and  hearing  of  many. 

enhanced  and  aggravated  by  base  and  deliberate  falsehood.  To  the  question,  therefore, 
now  under  discussion,  the  observations  alluded  to  in  the  debate  on  the  Libel  Bill  have 
no  application. 

A  comparison  of  the  law  of  England  with  that  of  Scotland,  does  not  permit  the  advo- 
cate for  the  former  to  object  to  the  latter,  the  repelling  £  defence  founded  on  the  truth  of 
the  libel,  in  the  case  of  a  criminal  prosecution;  but  he  may  object  that  the  Veritas  con- 
vicii  ought  to  be  received  ad%  valid  plea,  in  all  cases  where  the  complainant  sues  for 
damages,  and  that  the  law  of  Scotland,  as  well  as  the  civil  law,  whence  the  rule  is  de- 
rived, acts  on  a  faulty  principle,  in  constituting  not  the  damage  to  the  party  injured,  but 
the  contumelious  intention  of  the  calumniator,  the  main  test  for  deciding  on  the  rele- 
vancy of  the  remedial  action;  and  certainly  the  law  of  Scotland  deviates  from  the  civil 
*aw,  in  not  allowing  the  plea  of  the  truth  to  avail  as  a  defence,  in  cases  where  the  civil 
law,  on  grounds  of  policy,  admitted  that  defence.  For  the  language  of  the  Digest,  on 
this  point,  seems  to  be  too  clear  to  admit  of  serious  doubt  as  to  its  meaning.  The  rule 
and  practice  of  the  civil  law,  in  admitting  the  truth  to  amount  to  a  substantive  justi- 
fication in  the  remedial  action,  agrees,  in  the  main,  with  the  rule  and  practice  of  the 
law  of  England.  And,  perhaps  the  very  circumstance,  that  the  same  practical  conclu- 
sion has  been  derived  by  the  aid  of  different  principles,  might  well  be  urged  as  a  further 
argument  in  its  favor. 


PRELIMINARY  DISCOUBSE.  Lxvii 

Again,  an  oral  insult  may  be  greatly  aggravated,  by  the  consid- 
eration that  it  was  offered  in  a  man's  own  house,  in  the  presence  of 
his  family,  or  before  a  public  assembly  of  friends  or  others  whose 
respect  he  wonld  be  anxious  to  retain.  As  far,  however,  as  the 
claim  to  damages  is  concerned,  if  there  be  an  actual  publication  of 
the  calumny  to  a  third  person,  (for  thai  is  plainly  essen- 
tial to  the  notion  of  damage,  actual  or  presumed,)  'such  [  Ixviii  ] 
circumstances,  whatever  their  effect  may  be,  in  enhancing 
the  damage  sustained,  do  not  seem,  in  principle,  to  afford  anj  ma- 
terial or  essential  test  for  ascertaining  the  title  to  some  compensation. 
If  any  damage  has  actually  resulted  from  a  publication  to  a  third 
person,  other  circumstances,  constituting  an  aggravation  of  the 
wrong,  cannot  be  material,  otherwise  than  as  they  affect  the  ques- 
tion of  damages;  and  if  damage  be  presumed  in  law,  and  proof  of 
actual  damage  be  immaterial,  still  circumstances  of-  extended  pub- 
licity merely  affect  the  question  of  degree,  and  not  the  presumption 
itself.  If  damage  is  to  be  presumed  from  a  publication  to  many, 
some  damage  may  also  be  presumed  from  a  publication  to  a  single 
individual,  especially  as  that  individual  may  afterwards  publish  the 
slander  indefinitely.  And,  therefore,  if  the  law  on  a  presumption 
of  a  probable  damage  constitutes  a  particular  class  of  communica- 
tions substantively  actionable,  though  no  particular  loss  or  damage 
can  be  proved,  it  is  obvious  that  a  communication  to  a  third  person 
is  all  that  is  essential,  and  that  the  mode  and  circumstances  of  com- 
munication do  not  in  themselves  supply  any  obvious  and  natural 
limits  for  defining  the'  extent  of  civil  liability  (//). 

4 

(h)  The  civil  law  made  a  material  distinction,  not  only  between  oral  and  written 
defamation,  but  even  between  an  inj  iry  by  writing  and  one  by  pictures.  Thus  Heineo- 
ciu*.  Lib.  -17.  tit.  10,  in  explaining  the  t'ule  in  the  Itigest  de  injuriis  &  Famosis  Libellis, 
observes,  "  injuriam  uliam  esse  verbalem  si  quia  alteri  convioium  adversu*  bonos  i 
facit  vel  fieri  curat,  aliam  realem  quae  re  et  facto  infertur.  Ad  priorem  etiam,  injuriam 
aoriptura,  ad  posteriorem  ei  per  pictaram  illata  refertur."  There  seems,  however,  to 
be  little  either  of  principle  i  r  practical  utility  in  this  distinction  et'  the  oivil  law,  which 
constitutes  defamation  by  means  i  fa  picture,  a  real  injury,  whilst  it  regards  a  calumny 
in  writing,  though  it  convey  precisely  the   -  ■  ind  is  equally  permanent  in  its 

nature,  as  a  verbal  one. 

of  the  numerous  commentators  on  the  civil  law  have  reasonably  doubted  the 
propriety  of  this  distinction,  whilst   others  trictly  maintained  it:  the  force  of 

their  arguments  may  be  appreciated  from  the  following  example — Matthseus  de  ('rim. 
tit.  tie  [njuriis  &  Famosis  Libellis,  c.  1.  s.  1. 

Referenda  hue  et  ilia  (Injuria)  qusB  tit  monstroan  et  infemi  picturn,  nee  reote  <|U:.dem 
picturam  ad  famosos  Libellos  transferunt  tanquam  muta  imago  non  minus  nc  liter* 
loquatur;  aut,  ut  anctox  Rhetoricorum  ad  Herrinnium  lib.  iv.  acripsit  quod  pictnra 
taciturn  puetuasit:  nam  ea  ratione   injuriam  qua;  manu  telove  fit,  ad  BOriptum  ^uoque 


lxxx  PRELIMINARY  DISCOURSE. 

*lxix  ]        *In  the  next  place,  do  any  and  what  limitations  natu- 
rally arise  from  a  consideration  of  the  motive  and  inten- 

referre  posses,  tanquam  et  vulnus  loquatur  et  tubera  capitis  et  vulnere  obclucto  cicatrix. 
It  must,  however,  in  fairness  be  observed,  that  this  passage,  in  which  the  learned 
writer  so  entirely  confounds  the  means  with  the  consequence  of  injury,  is  a  very  unfavor- 
able specimen  of  his  justty  celebrated  and  most  useful  treatise.  Tlie  Roman  law  not  only 
recognized  the  distinction  already  meutioned  between  oral  and  written  defamation,  but 
also  distinguished  between  various  circumstances  of  oral  slander.  It  was  termed  in 
some  instances  convicium  in  others  maledictum. — See  Dig.  lib.  47,  tit.  10.  Convicium 
proprie  est  (says  Matthseus  cum  in  coetu  aliquid  dicitur  aut  cum  vociferatione  pluribus 
vocibus  in  unum  collatis  quasi  convocium:  quod  autem  non  in  ccetu  nee  cum  vocifera- 
tione fit  maledictum  tamen  est  si  fit  adversus  bonos  mores  civitatis,  d.  1.  15.  §  Convic- 
cium  et  §  sive  unus.  Quinimo  etsi  natura  non  sit  contra  bonos  mores  civitatis  locus 
tamen  et  modus  efficere  possunt  ut  convicium.  Ex.  gr.  Idoneum  debitorem  appellare 
non  est  convicium:  sed  faccre  id  in  publico  et  cum  clamore.  Cedo  F<enus,  redde  foenus, 
foenus  reddite.     Daturine  estis  fcenus  actutum  miM;  Date  mini  foenus  :  convicium  est. 

This  distinction  between  the  mere  maledictum  and  the  convicium,  was  not,  it  must 
be  admitted,  unreasonable,  especially  with  a  view  to  the  protection  of  the  public  peace: 
many  expressions  may  be  used  in  private,  the  noticing  of  which  would  be  beneath  the 
dignity  of  the  law,  as  being  too  trifling  and  unimportant  to  require  judicial  cognizance, 
and  yet  the  very  same  words  spoken  before  a  large  assembly,  might  not  only  be  likely 
to  produce  serious  and  injurious  consequences  to  the  individual,  but  also  to  provoke  him 
to  acts  of  personal  violence.  The  distinction  between  the  convicium  and  maledictum,  is 
not  recognized  by  the  law  of  England. 

.  In  the  case  of  Jones  v.  Heme,  2  Wil3.  87,  Infra.  24.  Willes,  C.  J.,  observed,  that  if 
it  u-cre  res  Integra,  he  should  hold  that  the  calling  a  man  a  rogue,  or  a  woman  a  whore 
in  a  public  company,  was  actionable.  Yet  his  mode  of  expression  clearly  showed  that 
he  considered  the  law  as  established  to  the  contrary.  And  it  is  not  improbable  that 
more  would  be  lost  than  gained  by  the  introducing  a  distinction  which  would  be 
subject  to  great  uncertainty.  The  doctrine  of  the  Roman  law,  on  this  s abject,  was  ex- 
ceedingly lax  and  indefinite;  every  expression  was  maledictum ,  and  the  subject,  as  well, 
of  a  criminal  as  a  civil  proceeding,  which  was  "  adversus  bonos  mores  civitatis,"  a 
vague  and  uncertain  definition,  as  the  mass  of  comment  which  it  has  undergone  suffi- 
ently  evinces.  A  host  of  interpreters,  according  to  Matthseus,  have  asserted,  that  to 
affirm,  even  truly,  that  a  man  had  but  one  eye,  or  was  bald,  or  lame,  fell  within  the 
scope  of  this  expression.  Again;  to  say  nothing  of  the  difficulty  of  deciding  what  num- 
ber of  persons  or  what  circumstances  should  constitute  the  ccelus,  or  what  loudness  of 
tone  the  vociferation,  the  very  example  adduced  is  sufficient  to  show  the  laxity  and  ex- 
tent of  the  definition,  when  even  the  demanding  of  a  just  debt  before  many  witnesses 
was  to  be  deemed  to  be  a  contumelious  injury  and  offence.  So  convinced  was  the  com- 
mentator just  cited,  of  the  difficulty  of  deriving  any  certain  rule  from  the  Digest  ou  this 
subject,  that  he  concludes  with  the  expression  of  his  opinion,  that  in  each  case  it  must 
be  left  to  the  discretion  of  the  judge  whether  he  shall  interfere  or  not.  Hanc  ob  causam 
ego  existimaverim  judicis  potius  judicio  relinquendum  esse  ut  ex  re  atque  persona  sta- 
tuat  prsetermittenda  an  animadvertenda  hujusmodi  sit  contumelia. 

The  law  of  England  has  recognized  but  one  distinction  as  to  the  mode  of  communi- 
cation, that  is,  between  mere  oral  ones,  and  those  effected  by  writing,  printing,  paint- 
ing, or  other  visible  signs.  This  distinction  is,  however,  applied  by  the  law  of  England 
in  two  instances  of  very  great  importance,  the  one  in  reference  to  civil,  the  other  in  re- 
spect of  criminal,  liability.    Iu  the  first  place,  the  circumstance  of  the  calumny  being 


PRELIMINARY  DISCOURSE.  lxix 

tion  *of  the  publisher  ;  first,  either  in  the  abstract,  or  [  *lxx  ] 
secondly,  taking  into    consideration    the    occasion  and 

conveyed  in  writing,  print,  &c.  (in  which  case  it  in  termed  a  libel)  is  made  use  of  to 
constitute  a  very  large  and  important  class  of  substantive  injuries,  where  the  oalnmnj 
is  by  legal  definition  and  authority  made  actionable,  though  no  actual  damage  oan  be 
shown.    Bo  that  although,  in  other   instances,  the  law  limits  such  aol  e  main- 

tainable without  special  damage  tn  particular  and  defined  predicaments  in  reference  to 
the  nature  and  quality  of  the  communication,  and  the  probability  that  it  will  produce 
damage,  though  none  can  be  expressly  proved;  as  where  it  imputes  the  commission  of  a 
crime,  or  immediately  affects  the  complainant,  in  his  means  of  livelihood,  yet  in  the 
particular  instance  of  irriltcn  tlander  the  law  abandons  that  principle,  and  by  an  arbi- 
trary distinction,  founded  on  the  mere  mode  of  communication,  makes  that  to  be  ac- 
tionable, without  special  damage,  when  it  is  written  or  printed,  which  would  not  have 
been  deemed  actionable  hail  it  been  merely  spoken.  As  for  instance,  to  charge  a  man 
by  word  of  mouth,  with  want  of  veracity,  or  with  dissolute  conduct,  would  not,  unless 
some  special  loss  were  the  consequence,  support  a  claim  to  damages;  yet  if  tin-  same 
imputation  were  to  be  published  in  writing,  the  action  for  damages  would  be  maintain- 
able. This,  however,  must  be  regarded  as  an  absolute  peremptory  rule,  not  founded  "ii 
any  obvious  reason  or  principle.  If  damage  is  to  be  presumed  from  publishing  such  a 
charge  in  writing,  why  is  not  some  damage  also  to  be  presumed  from  publishing  the  fact 
orally?  The  extent  of  publicity,  and  quantity  of  damage  to  be  presumed  in  the  one 
case,  rather  than  the  other  is  obviously  casual  and  uncertain,  and  rather  affects  the  mea- 
sure and  quantum  of  damages  than  any  principle  of  civil  liability. 

Another,  and  that  a  most  important  application  of  this  distinction  between  oral  and 
written  publications,  is  made  by  the  law  of  England  in  the  criminal  branch  of  the  sub- 
ject. In  all  cases  of  mere  personal  calumny,  the  distinction  between  a  written  and  an 
oral  charge  is  made  the  material  boundary  between  guilt  and  innocence.  Whatever 
tends  to  lower  and  degrade  a  m  in's  mural  character  in  society,  or  to  expose  him  to  con- 
tempt and  ridicule,  is  criminal,  if  it  be  published  in  writing,  although  the  very  same 
matter,  if  spoken  only,  would  have  constituted  no  offence.  Here  again  the  boundary  is 
not  founded  on  any  intrinsic  principle  of  criminal  liability;  for  one  gieat  object  of  the  law 
in  prohibiting  the  publication  of  libels  of  this  description,  is  to  exclude  provocations  which 
tend  immediately  to  a  breach  of  the  peace,  and  it  is  obvious  that  oral  abuse,  when  uttered 
in  the  presence  of  the  party  defamed  and  in  the  hearing  of  others,  is  oftentimes  much 
more  strongly  provocative  than  the  same  calumny  would  be,  though  written,  if  pub- 
lished in  his  absence.  But  though  Bucb  considerations  clearly  prove  that  the  law  of 
England,  if  the  principles  of  intrinsic  expediency  were  alone  lo  be  regarded,  would  be 
inconsistent  in  establishing  a  limit  which  would  so  frequently  admit  the  very  mischief 
to  be  guarded  against,  it  i-  to  be  recollected  that  the  expediency  of  a  law  in  refer 
tin-  particular  mischief  intended  to  be  excluded,  is  a  very  different  question  tVom  its 
general  expediency,  in  reference  to  extrinsio  circumstances,  whioh  oftentimes  greatly 
limit  and  restrain  the  generality  of  the  rule  which  would  prevail  were  the  restraining 
of  the  particular  mischief,  the  only  object  to  be  attained. 

It  is  expedient,  no  doubt,  to  restrain  men  from  using  calumnious  and  provoking"  ex- 
pressions concerning  others;  but  it  would,  on  the  Other  hand,  be  highly  inexpedient  aud 
mischievous  to  subject  the  utterer  of  every  expression  which  might  possibly  provoke 
offence  and  retaliation,  anil  ultimately  violence,  to  a  penal  prosecution;  it  would  be  at- 
tended with  tearful  evils,  legal  as  well  as  moral,  if  men's  mouths  were  to  be  closed  a* 
to  all  communications  in  which  the  character  or  reputation  of  others  might  possibly  be 
involved.     What  then  is  to  be  done  if  the  evil  canuot  be  wholly  excluded,  and  canuot  be 

Vol.  I.  5 


lxx  PRELIMINARY  DISCOURSE. 

[  *lxxi  ]     *  circumstances  of  publishing?      There  are  strong  and 

powerful  reasons  for  insisting  on  the  general  proposition, 
[  Ixxii  ]  "that  if  any  man  publish  concerning  another  that  which 

in  legal  contemplation  is  injurious  and  actionable,  no 
[  lxxiii  ]    limitation,  exemption,  or  privilege,  can  be  founded  on  the 

motive  and  intention  of  the  publisher  considered  indepen- 
dently and  abstractedly  from  some  occasion  defined  and  recognized 
by  the  law,  'and  supplied  by  the  circumstances.  It  is  an  obvious 
rule  of  natural  justice,  that  wherever  a  man  uses  noxious  and  inju- 
rious means,  he  must  be  presumed  to  have  contemplated  and  intend- 
ed the  injurious  but  natural  consequence  of  using  such  means  (i). 
The  publisher  of  a  communication  concerning  another,  which  is  in 
itself  noxious  and  injurious,  must  stand  in  one  or  other  of  these  dif- 
ferent predicaments  as  to  intention  and  motive.  He  may  act  either 
from  a  motive  of  pure  malignity,  as  out  of  revenge  for  some  sup- 
posed affront  ;  or,  secondly,  from  an  honest  and  benevolent  motive, 
as  if  a  father   were  to  warn  a  son  that  one  with  whom  the  latter 

was  about  to  contract  a  partnership  was  insolvent,  or  a 
[  *lxxiv  ]   man  of  dishonest  principles  ;  or,  thirdly,  being  *merely 

indifferent  as  to  consequences,  he  may  be  actuated  by 
st>me  collateral  motive,  with  a  view  to  applause  or  gain,  or  may  act 
carelessly  and  negligently,  without  any  fixed  or  determinate  motive 
whatsoever.  As  where  one,  for  the  sake  of  shewing  his  wit  or  tal- 
ent for  sarcasm,  indulges  it  at  the  expense  of  another's  reputation, 
not  because  he  really  feels  any  inclination  to  do  that  other  an  injury, 
nor  because  he  is  actuated  by  any  personal  feeling  of  hatred  or  ani- 

tolerated  without  some  restraints;  aline  must  somewhere  be  drawn,  which,  whilst  it 
partially  restrains,  at  the  same  time  partially  admits  the  evil.  In  this,  as  in  many 
other  instances,  good  and  evil  are  so  closely  and  intimately  blended,  or  rather  perhaps, 
more  properly  speaking,  opposite  mischiefs  so  conflict  and  contend  together,  that  it  is 
impossible  wholly  to  exclude  either  without  increasing  the  whole  quantity.  In  such 
cases  the  important  problem  is  to  discover  the  precise  rule,  which,  though  it  does  not 
entirely  exclude  either  of  the  opposite  and  conflicting  inconveniences,  yet  admits  only 
the  minimun  of  evil.  It  is  upon  these  plain  and  simple  grounds  that  the  law  of  Eng- 
land is  founded,  which,  whilst  it  prohibits  the  publication  and  punishes  the  publisher  of 
written  slander,  takes  no  cognizance  of  mere  oral  calumny,  and  whilst  it  restrains  by 
penal  means  all  deliberate  attempts  to  destroy  character  and  reputation  by  written  de- 
famation, leaves  mankind  at- full  liberty  to  communicate  on  the  subject  of  character  and 
reputation,  without  the  fear  or  apprehension  of  penal  visitation. 

(i)  Si  verba  quae  lam  prolata  sint  ambigua  duplicem  admittentia  significationem,  in 
bonam  partem  in  dubio  facienda  eorum  interpretatio,  quoties  enira  alia  potest  capi  con- 
jectura  pro  delicto  praesumendum  non  est.  Sin  tales  fuerint  prolati  sermones  qui  per  se 
et  propria  significatioue  contumelhm  iferunt  injuriandi  animus  adfuisse  creditur. — Voet. 
Com.  tit.  de.  Injur,  p.  1023. 


PRELIMINARY  DISCOURSE.  lxxiv 

mosity,  but  merely  to  entertain  others  and  shew  himself  off  to  ad- 
vantage. 

Bat  it  is  plain  that  no  one  of  these  predicaments  can,  without  ref- 
erence to  the  legal  occasion  and  circumstances  of  the  act,  afford  any 
certain  boundaries  of  responsibility.  Be  the  motive  ever  so  mali- 
cious, there  may  be  and  are  cases  where  it  is  essential, on  groundsof 
legal  policy,  to  exclude  responsibility.  Again,  though  the  intention 
of  the  party  be  ever  so  pure  and  unexceptionable,  and  consequent- 
ly, though  he  be  entitled  to  the  utmost  indulgence  which  is  consist- 
ent with  a  due  regard  to  the  interests  and  characters  of  others,  it 
may  nevertheless  be  necessary  to  restrain  the  nature  and  mode  of 
communication  by  such  limits  as  may  consist  with  general  conve- 
nience ;  for  it  is  pretty  obvious  that  a  well  intentioned  man  may 
use  very  exceptionable  and  very  injurious  means  for  carrying  his  in- 
tentions into  effect ;  and  consequently,  to  make  a  mere  abstract  in- 
tention to  do  good,  the  criterion  of  civil,  or  even  of  criminal  respon- 
sibility, would  be  a  test  far  too  uncertain  and  precarious  for  practi- 
cal purposes  ;  it  is  essential,  therefore,  that  the  law  itself  should  de- 
fine, in  reference  to  the  occasion,  to  what  extent  the  acting  on  such 
intentions  should  be  privileged.  Where  such  boundaries 
have  been  defined  and  "appointed  by  the  law,  the  wilful  [  *lxxv  ] 
transgression  of  them  cannot  be  justified  in  foro  consci- 
entiae,  still  less  in' foro  humano  ;  for  no  man  has  a  right,  even  mor- 
ally speaking,  to  act  on  his  own  opinion  in  derogation  of  the  legal 
right  of  another,  and  in  opposition  to  the  municipal  law  of  the  coun- 
try. To  allow  him  to  do  so,  because  in  his  own  opinion,  his  act 
was  meritorious  and  expedient,  would,  in  effect,  be  to  permit  every 
man  to  act  on  his  own  judgment,  in  opposition  to  the  law,  and  that 
not  only  in  the  particular  instance  but  in  all  cases,  which,  in  effect, 
would  be  to  substitute  every  man's  own  vague  notion  of  what  is 
right  and  expedient,  for  the  certain  rules  established  by  the  supreme 
power  of  the  state. 

It  follows,  therefore,  that  in  the  case  of  intellectual  injuries  to 
character  and  reputation,  as  well  as  in  those  of  forcible  ones  to  the 
person,  it  is  for  the  law  to  define  the  particular  occasion  and  circum- 
stances which  will  operate  by  way  of  justification  and  excuse  in  ca- 
ses where  a  wilful  communication  to  the  detriment  of  another  would 
otherwise  have  subjected  the  author  to  make  compensation  in  dam- 
ages. And  consequently  it  follows,  that  the  real  motive  and  inten- 
tion of  the  author  or  publisher  of  a  communication  which  is  illegal, 
either  intrinsically  or  in  respect  of  its  consequences,  in  the  absence 


lxxv  PRELIMINARY  DISCOURSE. 

of  such  an  occasion  and  such  circumstances  as  amount,  in  point  of 
law  to  an  absolute,  or  at  least  a  qualified  excuse,  are  wholly  imma- 
terial as  a  test  of  civil  liability.  And,  consequently,  that  although 
the  offence  of  calumny  be  defined  in  terms  which  include  a  corrupt 
or  malicious  intention,  the  consilium  or  animus  infamandi,  yet  that 
in  the  absence  of  such  an  excuse  for  the  publication  of 
[  *lxxvi  ]  noxious  matter,  which  the  law  recognizes,  *such  an  in- 
tention is  necessarily  to  be  inferred  or  presumed  from  the 
act  itself  (j  ). 

4thly.  The  occasion  and  circumstances  of  the  communication. 

It  is  then  to  be  considered,  whether  assuming  noxious  and  injuri- 
ous matter  to  have  been  published,  the  civil  remedy  ought  to  be  re- 
strained in  respect  of  the  occasion  and  circumstances  of  the  act, 
either  with  or  without  reference  to  the  motive  and  intention  of  the 
publisher. 

(;)  And,  therefore,  although  according  to  the  Roman  law,  the  mens  rea  or  animus 
infamandi  was  regarded  to  a  much  greater  extent  than  the  law  of  England  permits  ; 
yet  was  the  illegal  intent  regarded  as  a  matter  of  inference  from  the  use  of  contumelious 
expressions,  supra,  lxxiii.  note  (£)• 

It  is  not  improbable  that  in  the  earlier  stages  of  the  law  and  before  the  limits  of 
privileged  communication  had  been  defined  by  reference  to  the  occasion  and  circum- 
stances of  the  act,  the  mere  malicious  intention  of  the  agent  would  be  regarded  as  the 
principal  test  of  civil  responsibility.  Experience  would  show  the  insufficiency  of  such 
a  criterion,  and  limits  would  gradually  be  introduced,  defined  by  reference  to  the  occa- 
sion and  circumstances  of  the  act,  independently  of  the  actual  intention  with  which  the 
act  was  done.  It  is  probable,  however,  that  the  former  doctrine  and  language  of  the 
law,  according  to  which  malice  is  an  essential  to  responsibility,  would  still  be  retained, 
but  that  effect  would  be  given  to  the  newly  introduced  limits,  by  recognizing  the  distinc- 
tion between  malice  in  law,  which  is  nothing  more  than  a  mere  legal  inference  resulting 
from  the  wilful  doing  of  an  unlawful  act  without  legal  excuse  ;  and  malice  in  fact, 
which  depends  on  the  actual  intention. 

And  thus,  in  legal  and  technical  language,  malice  would  be  regarded  as  essential  to 
the  action,  and  as  the  test  of  liability,  although  it  was  actually  so  in  one  class  of  cases 
only,  that  is,  where  the  occasion  supplied  a  qualified  excuse  or  justification,  dependent 
on  the  absence  of  actual  malice  ;  legal  responsibility,  in  all  other  cases  being  dependent 
on  the  existence  or  non-existence  of  an  occasion  which  supplied  an  absolute  bar,  and 
being  wholly  independent  of  the  question  of  intention. 

There  is  a  distinction  in  the  law  of  Scotland,  as  to  intention,  between  cases  where  the 
damage  is  awarded  merely  in  solatium  and  where  they  are  given  to  repair  a  patrimonial 
loss  ;  that  is,  according  to  the  law  of  England,  between  cases  where  the  communication 
is  intrinsically  actionable  and  those  where  actual  damage  must  be  found  ;  in  the  former 
case  where  the  proceeding  is  solatium,  it  must  be  founded  upon  dolus  malus  :  but  in 
the  case  of  patrimonial  loss,  culpa  levissima  is  sufficient. —  Craig  v.  Hunter,  June  29, 
1809. 

Actual  damages  are  due,  though  occasioned  by  an   error.—  per  Ld.   Gillies.     Borth. 

194. 

The  term  '«  malice,"  as  used  by  the  law  of  England,  as  essential  to  liability,  includes 
the  culpa  as  well  as  the  dolus  of  the  civil  law. 


PRELIMINARY  DISCOl'ltSK.  lxxvi 

Iq  the  first  place,  that  it  is  on  grounds  of  expediency, 
necessary,  in  numerous  Instances,  to  define  and*restrain  [  Ixxvii  ] 
the  right  to  damages  by  Limitations,  founded  on  the  oc- 
casion and  circumstances  of  the  publication,  admits  of  no  doubt. 

The  necessity  for  Buch  Limitations  is  apparent,  when  it  is  consid- 
ered, in  the  first  place,  that  in  numerous  instances,  a  party,  in  mak- 
ing communications  mosl  injurious  to  character,  is  not  a  free  agent, 
but  necessarily  acts  under  Legal  authority  and  compulsion.     Thus, 

in  every  civilized  state,  Buch  communications  are  n< ssary  :  with  a 

view  to  the  administration  of  justice,  and  it  requires  no  force  of 
argument  to  show  how  seriously  the  course  of  justice  would  be  im- 
peded, if  judges,  jurors,  and  witnesses,  who  acted  merely  in  obedi- 
ence to  the  law,  were  to  be  subjected  to  the  ordinary  action  for 
slander,  in  respect  to  the  communications  which  they  were  obliged 
to  make.  It  is  a  matter  of  obvious  policy  and  conven- 
ience, that  great  latitude  should  be  afforded  'in  respect  [  'lxxviii  ] 
of  such  communications  as  are  necessary  for  the  ordi- 
nary exigencies  of  society,  and  the  mischief  and  inconvenience  would 
be  great,  if  those  were  to  be  fettered  and  restrained  by  the  perpet- 
ual apprehension  of  litigation. 

If,  then,  the  claim  to  damages  ought,  on  grounds  of  extrinsic 
policy,  to  be  limited  by  the  occasion  and  circumstances,  are  these, 
and  in  what  instances,  to  operate  as  an  absolute  and  conclusive  ex- 
ception, independently  of  the  question  of  intention  ;  and,  again,  in 
what  instances  are  the  occasion  and  circumstances  to  operate  as  a 
qualified  bar,  taking  into  consideration  the  real  motive  and  intention 
of  the  author  or  publisher. 

So  essential,  on  grounds  of  policy  and  expediency,  is  it,  that  in 
some  instances  the  occasion  of  publishing  should  constitute  an  abso- 
lute and  peremptory  bar  to  the  total  exclusion  of  civil  liability,  in 
respect  of  the  publication  of  injurious  matter,  and  that,  in  others, 
the  occasion  should  constitute  not  an  absolute,  but  qualified  bar, 
subject  to  the  consideration  of  the  actual  intention  of  the  publisher, 
that  these  general  distinctions  are  probably  common  to  every  system 
of  municipal  law,  Bubject,  nevertheless  to  particular  modifications. 

First,  then,  within  what  limits  on-lit  the  particular  occasion  to 
operate  as  an  absolute  bar,  independently  of  the  motive  and  inten- 
tion with  which  the  communication  was  made. 

It  is  observable,  in  the  i'wA  place,  thai  such  an  absolute  and  per- 
emptory bar,  with  one  exception,  (that  is,  where  the  imputation  is 
rue,)   seems  to  rest  wholly  on  principles  of  external  policy,  for  it 
5* 


lxxix  PRELIMINARY  DISCOURSE. 

is  obvious,  that  in  all  cases,  where  one  man,  with  a  mali- 
[  *lxxix  ]  eious  and  deliberate  intention,  Occasions  damage  to  an- 
other by  false  and  calumnious  representations,  he  is 
bound  to  make  compensation,  both. according  to  the  plain  principles 
of  natural  justice,  and  according  to  the  ordinary  maxims  of  muni- 
cipal law,  and,  therefore,  that  any  exemption  from  such  responsi- 
bility must  necessarily  depend  upon  some  external  consideration  of 
policy  and  convenience.  In  other  words,  that  for  some  reason  or 
other,  less  of  mischief  and  inconvenience  would  result  to  society 
from  denying  a  remedy  in  that  class  of  cases,  than  on  the  other  hand 
would  accrue,  if  the  ordinary  remedy  were  accorded.  This  class 
of  cases,  therefore,  does  not  admit  of  general,  and,  as  it  were,  nat- 
ural limits  and  boundaries,  without  reference  to  the  state,  condition 
and  circumstances  of  the  particular  society,  for  whose  governance 
the  law  is  intended,  and  the  general  system  and  spirit  of  its  institu- 
tions. It  is  easy,  however,  to  see  that,  as  a  matter  of  extrinsic 
policy,  such  a  protection  ought  to  be  extended  principally  in  those 
instances,  where  the  parties  act  under  peremptory  legal  obligations, 
in  the  discharge  of  duties  of  so  important  and  essential  a  nature, 
that  it  might  be  attended  with  great  public  inconvenience,  to  allow 
their  motives  to  be  called  in  question,  and  to  subject  them  to  ordi- 
nary actions  of  defamation.  Such  principles,  applied  to  our  own 
constitution  and  circumstances,  would  obviously  include  communica- 
tions made  in  parliament,  and,  in  all  countries  to  those  made  by 
judges,  jurors,  and  witnesses,  in  the  ordinary  course  and  administra- 
tion of  justice  (A;). 

(k)  The  title  of  one  section  in  Mr.  Borth  wick's  Law  of  Libel  in  Scotland  is  "  of  privi- 
leged cases,  where  the  capacity  alone  in  which  the  defender  has  acted,  may  amount  to  a 
complete  justification."  And  this  absolute  or  peremptory  privilege,  which  protects  the 
party  from  an  action  for  slander,  without  any  regard  to  his  motive  or  intention,  applies 
to  all  communications  by  judges,  jurors  and  witnesses,  acting  as  such.  The  Lord  Ad- 
vocate is  not  liable  to  an  action  in  respect  of  any  action  which  he  institutes,  however 
unfounded  it  may  turn  out  to  have  been,  yet  he  is  compellable  to  disclose  the  name  of 
his  informer,  who  is  liable  to  statutable  penalties,  as  a  false  and  calumnious  accuser. 
Such  a  proceeding  is  closely  analogous  to  the  English  action  on  the  case  for  a  malicious 
prosecution. 

Mr.  Borthwick  states  his  opinion,  that  the  law  of  England  which  considers  the  publi- 
cation of  the  proceedings  in  parliament,  or  in  the  ordinary  courts  of  justice,  as  abso- 
lutely privileged,  is  applicable  to  the  Scotch  practice,  but  with  considerable  abatement. 
And  it  appears  that  the  practice  which  has  prevailed  in  England,  of  publishing  ex  parte 
proceedings,  even  in  criminal  cases,  has  been  frequently  reprobated  by  the  judges  in 
Scotland.  In  the  case  of  Stewart  v.  Allan,  Dec.  31,  1818.  Lord  President  Hope,  in  de- 
livering his  opinion,  observed,  "  a  newspaper,  while  it  confines  itself  to  the  discussion 
of  political  affairs  and  public  occurrences,  is  useful  and  worthy  of  encouragement,  and 


PRELIMINARY  DISCOURSE.  lxxix 

•There  is  also  one  class  of  cases,  where  although  the  [  Mxxx  ] 
communication  be  in  fact  false,  yet  where  it  is  founded   [  *lxxxi  ] 
on  reasonable  and  probable  cause,  the  occasion  may  ex- 
empt from  legal  responsibility,  notwithstanding  the  malicious  and 

hostile  motive  of  the  accuser.  The  principle  of  immunity,  in  this 
case,  is  one  of  extrinsic  policy,  which  affords  protection  to  the  party, 
though  he  commits  a  wrong,  morally  speaking,  out  of  regard  to  the 
iucovenience  which  would  result  from  discouraging  men  from  making  . 
such  communications.  The  principal  instance  of  thi>  class  of  cases 
is,  that  of  a  false  and  malicious  prosecution.  One  who  makes  a 
criminal  charge  for  the  mere  gratification  of  private  malice,  acts 
immorally,  though  there  be  a  probable  ground  for  making  ii  :  and  if 
no  extrinsic  consideration  of  policy  intervened,  there  would  be  great 
reason  for  holding  that  such  a  charge  should  not  be  made  but  at  the 
peril  of  the  voluntary  accuser,  and  that  he  ought,  if  he  failed  to 
substantiate  his  accusation,  to  make  reparation  to  the 
party  whom  "he  had  accused  maliciously,  and  as  it  [  "lxxxii  ] 
turned  out,  contrary  to  the  truth.  But  a  consideration 
of  public  policy  intervenes  :  it  is  for  the  interest  of  society  that 
investigation  should  take  place  in  all  cases  where  there  is  reasonable 
and  probable  causp  for  inquiry,  and  therefore,  the  question  arises, 

the  liberty  of  the  press  has  been  more  important  for  the  maintenance  of  our  liberty  than 
any  one  public  right  enjoyed  by  the  people  of  this  country.  But  what  lias  the  liberty 
of  the  press  to  do  with  the  miserable  lawsuits  of  individuals  ?  And,  in  particular,  I 
desire,  from  this  chair  to  say,  whatever  maybe  the  practice  in  England,  what  have 
newspapers  to  do  with  lawsuits  during  their  dependence,  or  with  prosecutions  in  crimi- 
nal cases  before  they  are  concluded  ?  It  is  the  most  mischievous  and  monstrous  abuse 
of  the  liberty  of  the  press,  that  I  can  imagine,  to  publish  garbled  statements  of  judicial 
proceedings,  which  such  accounts  will  generally  be,  and  thus  to  excite  unfavorable  im- 
pressions against  one  of  the  parties;  I  am  astonished  at  what  I  sec  in  the  other  end  of 
the  island — not  only  reports  of  civil  cases  published  under  such  circumstances  as  may 
tend  to  prejudice  the  jury  and  the  judge,  but,  to  my  amazement,  you  see  precognitions 
taken,  with  a  view  to  prepare  for  the  trial  of  criminals,  and  which  must  have  the  eflect 
of  instilling  prejudices  into  the  minds  of  those  who  are  afterwards  to  try  their  case- 
Such  practices  are  unknown  here,  and  I  hope  they  will  always  he  so." 

It  stems,  however,  to  be  perfectly  well  settled,  that,  by  the  law  of  England,  the  pub- 
lication of  ex  parte  criminal  proceedings  will  subject  the  publisher  to  criminal,  as  well 
as  civil  consequences,  and  the  better  opinion  seems  to  be,  that  the  same  will  extend  also, 
to  the  publication  of  mere  ex  parte  civil  proceedings  of  a  defamatory  nature.  See  the 
authorities,  vol.  1,  p.  '257,  and  also  Lord  Hale's  opinion,  St.  Tr.  vol.  3,  p.  543. 

The  constituting  the  occasion  a  peremptory  bar  to  an  action,  without  regard  to  malice, 
though  the  law  of  Scotland  regards  malice  as  of  tlie  essence  of  the  offence,  is  reconciled 
by  considering  the  criminal  intention  as  rebutted  or  redargued  by  evidence  of  the  occa- 
sion, which  is  thus  made  to  operate  as  a  praesumptio  juris  <§•  de  jure.  This,  it  is  obvi- 
ous is  but  a  circuitous  mode  of  saying,  that  in  one  class  of  cases,  the  question  of  malice 
is  immaterial,  and  intention  ceases  to  be  a  test  of  responsibility. 


lxxxii  PRELIMINARY  DISCOURSE. 

whether  it  would  be  productive  of  greater  inconvenience  to  deny 
the  individual  remedy  in  such  cases,  that  is,  where  a  probable  cause 
for  preferring  the  charge  existed,  or  to  discourage  prosecutions  by 
allowing  the  remedy. 

In  the  next  place,  still  assuming  that  the  complainant  has  sus- 
tained some  injury  from  the  publication  of  that  which  is  in  its  own 
nature  noxious  and  detrimental,  the  occasion  of  publishing  may  sup- 
ply a  qualified  bar  or  defence  to  the  action,  dependent  on  the  real 
motive  and  intention  of  the  publisher. 

This  is  a  distinction,  which,  on  considerations  of  natural  justice, 
coupled  with  those  of  external  policy,  necessarily  comprehends  a 
numerous  and  important  class  of  publications,  affecting  character 
and  reputation.  To  prohibit  communications,  however  necessary 
they  might  be  in  the  ordinary  intercourse  of  society,  and  however 
confidential  in  their  nature,  in  all  cases  where  they  might  occasion 
mischief  to  an  individual,  would  be  to  impose  restraints  and  fetters 
on  mutual  intercourse,  which  would,  at  the  least,  be  inconvenient,  if 
not  intolerable.  No  one  would  be  able  to  give  a  character  of  a 
servant,  or  even  venture  to  give  his  opinion  of  an  inn  or  tavern,  for 
fear  of  an  action.  And,  on  the  other  hand,  to  allow  every  indi- 
vidual maliciously  to  deal  out  malignant  calumnies,  under  the  cloak 
and  color  of  privileged  communications,  would  as  little 
"  *lxxxiii  ]  consist  with  the  convenience  and  comfort  *of  society, 
as  with  the  principles  of  morality  and  natural  justice. 

The  common  and  daily  intercourse  of  mankind  for  the  purposes  of 
business,  the  ordinary  exigencies  of  society,  require  that  communi- 
cations be  made,  though  they  may  be  prejudicial  to  particular  indi- 
viduals ;  it  would  be  vain  and  impolitic  to  endeavor  to  prohibit  them. 

But  it  is  not  for  the  convenience,  but  greatly  to  the  prejudice  of 
society,  that  false  and  injurious  communications  should  be  made,  not 
in  order  to  the  furtherance  of  any  good  or  beneficial  object,  but  for 
the  gratification  of  an  evil  and  malicious  disposition:  here,  then,  is 
a  plain  and  obvious  limit  to  such  communications.  Where  they  are 
made  honestly,  and  bonajide,  with  a  view  to  the  exigencies  of  soci- 
ety, they  are  privileged  on  principles  of  policy  and  convenience, 
though  the  party  who  made  them  was  mistaken,  but  when  they  are 
false!//  and  maliciously  made,  they  are  not  protected  by  any  princi- 
ple of  convenience  or  utility,  and  therefore  cease  to  be  privileged. 

The  principle  of  qualified  exemption,  where  the  condition  of  im- 
munity is  integrity  of  intention,  or,  at  least,  the  absence  of  actual 
malice,  comprehends  all  cases  where  a  communication  is  made  hnn- 


PRELIMINARY  DISOOUBSB.  lxxxiii 

estly,  with  a  view  to  the  discharge  of  any  legal,  or  even  moral  duty 
incident  to  a  state  of  civilized  society.  Such  communications,  it  is 
obvious,  ought  to  be  protected,  whenever  they  are  made  sincerely, 
and  not  with  an  actual  and  malicious  intention  to  defame. 

This  principle,  therefore,  includes  all  cades  where  the 
communication   is  made  in  confidence  to  another  *on  a   [  "lxxxiv  ] 
subject  in  which  he  possesses  an  interest.     As  where  a 
party  gives  a  character  of  a  servant,  or  makes  the  communication 
in  the  way  of  admonition  or  advice,  or  in  the  fair  and  bona  fide  fur- 
therance of  the  interests  of  others,  or  even  of  his  own.     In  respect, 
therefore,  of  this  class  of  cases,  that  is  where  an   occasion  exists, 
which,  if  fairly  acted  upon,  furnishes  a  legal  protection  to  the  party 
who  makes  the  communication,  the  actual  intention  of  tin:  party  af- 
fords a  boundary  of  legal  liability  ;  if  he  had  that  legitimate  object  in 
view,  which  the  occasion  supplies,  he  is  neither  civilly  nor  criminal- 
ly amenable  ;  if  on  the  contrary,  he  used  the  occasion  as  a  cloak  of 
maliciousness,  it  can  afford  him  no  protection(/). 

*And  here  it  is  to  be  observed,  that  as  the  honesty  and  [  *lxxxv  ] 
integrity  with  which  a  communication  of  hurtful  tenden- 
cy is  made,  cannot  exempt  from  civil  liability,  unless  it  be  coupled 

(I)  With  respect  to  this  extensive  class  of  cases,  the  laws  of  England  ami  Sec Hand 
proceed  on  the  general  principles  stated  in  the  text,  and  malice  in  fact,  is  the  test  of 
civil  and  criminal  liability.  According  to  the  doctrine  of  the  Scotch  courts,  the  occa- 
sion operates  as  a  prcesumptio  juris  or  as  prima  facie  evidence  of  the  absence  of  a  ma- 
licious intention  to  injure,  and  proof  of  the  contrary  is  thrown  on  the  pursuer.  See 
Borthw.  L.  L.  'J13.  And  according  to  the  law  of  England,  infra,  vol.  1,  p.  292,  there 
are  numerous  cases  of  privilege,  where  proof  of  actual  malice  is  essential  to  support 
the  action.  The  extent  to  which  the  privilege  is  allowed  to  operate,  seems  to  be  the 
game  in  Scotland,  and  is  illustrated  by  Mr.  Borthwick,  in  its  application  to  cases  of 
characters  given  to  servants,  of  speeches  by  advocates,  of  literary  criticism,  and  in 
general  of  any  communication  made  either  by  or  to  one  who  has  an  interest  in  the  mak- 
ing it.  The  following  instance  may  be  cited  by  way  of  illustration  : — A  person  who 
was  in  the  habit  of  Bending  his  grain  to  a  mill  to  be  made  into  meal,  had  discovered  a 
contrivance,  by  which  the  miller  abstracted  a  part  of  all  the  grain  brought  to  his  mill. 
He  immediately  communicated  his  discovery  to  all  those  who  tholed  at  the  mill,  and  also 
to  all  those  who  voluntarily  employed  it.  Upon  an  action  being  brought  by  the  miller, 
before  the  sheriff  of  the  county,  the  judge  deemed  the  case  to  be  a  privileged  one.  the 
communication  having  been  made  by  a  person  who  had  sustained  an  injury,  to  others 
who  had  been  also  injured  by  the  pursuer's  dishonest  conduct,  and  who  had  therefore 
an  interest  to  be  made  acquainted  with  it.  The  defender  offered  to  prove  the  truth  of 
the  information,  which  the  sheriff  allowed.  The  miller  denied  the  fact,  but  he  argued 
that,  at  any  rate,  the  defender  had  no  privilege  or  title  to  take  the  method  he  had  done 
to  check  the  evil,  and,  on  that  ground,  ought  not  to  be  allowed  to  show  the  veritai  con- 
vicii  and  to  this  effect  he  brought  the  proof  before  the  court  of  session,  by  a  bill  of  ad- 
vocation, which  their  lordships  refused.     Borth.  L.  L.  236. 


lxxxv  PRELIMINARY  DISCOURSE. 

with  an  occasion  recognised  by  the  law,  so,  on  the  other  hand,  re- 
sponsibility ought  immediately  to  attach,  where  the  mode  or  nature 
of  the  communication  in  any  respect  exceeds  that  which  the  legal 
occasion  warrants.  For  as  to  the  excess,  no  legal  justification  or 
excuse  arises  from  the  occasion,  and  the  case  stands  on  the  same 
footing,  as  far  as  regards  such  excess,  with  any  other  communication 
made  without  lawful  excuse ;  that  is,  the  mere  absence  of  express 
malice,  cannot  -justly  repel  the  action.  And,  therefore,  though  A., 
knowing  that  B.  was  about  to  employ  an  agent,  whom  he,  A.,  sus- 
pected to  be  a  man  of  unprincipled  character,  would  be  justified  in 
communicating  his  knowledge  to  B.,  although  he  was  in  fact  mistaken, 
yet  he  would  not  be  justified  in  doing  so  in  the  hearing  of  other 
persons  who  were  not  interested  in  the  fact ;  for  the  occasion  war- 
rants a  communication  to  B.  only,  and  as  to  the  rest,  it  is  mere  ex- 
cess, not  warranted  by  the  occasion ;  and  though  A. 
[  *lxxxvi  ]  might  really  be  influenced  by  the  honest  *motive  of  warn- 
ing B.  of  the  danger  he  would  incur  in  employing  such 
an  agent,  yet  he  acted  illegally  in  depriving  the  latter  of  his  char- 
acter unnecessarily,  and  upon  suspicion  only.  If,  indeed,  he  knew, 
and  could  prove  the  truth  of  his  communication,  he  might  well  jus- 
tify, a  publication  to  all  the  world;  but  that  is  a  defence  which 
stands  upon  an  entirely  different  foundation. 

If  A.  really  suspected  that  the  agent  was  a  dishonest  man,  the 
law,  founded  on  the  principles  just  announced,  would  protect  him  in 
making  the  communication  bona  fide  to  B.,  though  in  truth  he  was 
mistaken ;  the  honesty  of  his  design,  superadded  to  a  legal  occa- 
sion, would  constitute  a  full  defence  ;  but  when  he  makes  the  com- 
munication to  others,  the  occasion,  as  far  as  concerns  the  communi- 
cation to  them  fails,  and  he  ought,  on  the  plainest  principles  of  nat- 
ural justice,  to  be  responsible  for  a  wilful  and  wanton  derogation 
from  the  right  of  another,  by  unnecessarily  making  a  charge  which 
turns  out  to  he  false. 

Having  thus  briefly  noticed  the  principal  circumstances  which 
seem  to  be  essential  to  the  limitation  of  freedom  of  communication, 
for  the  sake  of  security  of  character  to  individuals,  and  the  natural 
boundaries  which  appertain  to  such  limitations,  the  subject  is  now 
to  be  considered  in  reference  to  the  welfare  and  security  of  the 
public  (rn). 

(m)  It  is  remarkable  that,  by  the  law  of  Scotland,  four  different  objects  may  be  com- 
bined in  a  proceeding  for  libel. — 1 .  For  a  reparation  for  damages  sustained  in  property. 
2.  A  solatium  commensurate  to  the  plaintiff's  mental  and  personal  sufferings. — 3.  For 


PRELIMINARY  DISCOURSE.  lxxxvi 

*Hcre,  pursuing  the  same  course  as  before,  the  ques-  [  'lxxxvii  ] 
tions  are,  1st,  whether  restraint   be  necessary  for  the 

securing  the  interests  of  the  public?  2ndly,  "What  are  the  proper 
modes  and  limits  of  restraint? 

In  the  first  place,  the  necessity  for  some  degree  of  restraint  is 
of  too  obvious  a  nature  to  require  more  than  a  few  cursory  remarks. 
It  is  plainly  essential  that  the  laws  of  every  civil  society  should 
provide  not  only  against  attempts  to  produce  a  violent  and  prema- 
ture dissolution  of  its  existence,  but  also  against  indirect  as  well  as 
direct  endeavors  to  violate  its  particular  regulations  and  ordinances, 
and  bring  them  into  contempt. 

To  a  perfect  system  of  jurisprudence,  no  laws  can  be  more  es- 
sential and  important  than  those  which  protect  the  very  existence 
and  safety  of  the  civil  constitution  itself.  It  would  be  in  vain  to  erect 
the  political  edifice,  without  at  the  same  time  securing  its  founda- 
tions. 

•Where  the  immediate  end  and  object  of  communica-  [  *lxxxviii  ] 
tions  whether  oral  or  written,  is  the  total  subversion  of 
the  civil  constitution,  they  necessarily  rauk,  in  degree,  with  other 
treasonable  practices  against  the  state. 

AVhere  they  amount  to  direct  incitements,  to  commit  some  specific 
violation  of  a  particular  law,  the  offence  must  necessarily  lie  nearly 
of  kin  to  an  actual  violation  of  that  law;  if  an  actual  breach  of 
the  law  be  the  consequence  of  such  a  solicitation  or  incitement,  the 
act  amounts  to  an  absolute  and  complete  transgression  of  the  law, 
and  even  though  that  consequence  should  not  follow,  yet  a  deliber- 
ate attempt  to  break  the  law  must  necessarily  constitute  an  offence 
which,  in  principle  at  least,  calls  for  penal  visitation. 

And  the  necessity  for  restraint  applies  to  indirect,  as  well  as  di- 
rect solicitations,   to  violate  the  law ;  for,  as  the  latter  may  be 

penal  censures,  ad  vindictam  publicum. — 4  For  a  palinode.  See  Borth.  3-1.  By  the 
oh  il  law,  though  the  ground  of  the  remedial  ami  criminal  proceeding,  in  case  of  libel, 
was  identical,  yet  the  actions  were  kept  distinct. 

According  to  the  law  of  England,  an  entire  distinction  is  preserved  between  civil  and 
criminal  proceedings  in  cases  of  libel,  except,  peihaps,  in  the  single  instance  of  au  ac- 
tion of  scandalum  magnntum,  under  the  statutes,  vide  vol.  1.  p.  17"> 

The  law  of  England,  formerly,  combined  criminal  and  civil  proceedings  toil  far  great- 
er extent.  In  an  action  for  the  abduction  of  a  wife,  the  offender  even  now  is  not  only 
liable  to  damages  to  the  injured  husband,  but  also  under  the  same  statute.  ( 1st  of  West.) 
to  two  years'  imprisonment.  And  the  form  of  proceeding  in  a  civil  action  of  trespass, 
viet  armis,  to  this  day,  shows  that  the  guilty  defendant  was  also  liable  to  pay  a  line  to 
the  king,  for  his  breach  of  the  public  peace.  Such  considerations  are  not  merely  of  a 
formal  and  technical  nature  ;  the  tendency  of  such  combinations  is  to  anuex  incidents 
in  common,  which  ought,  for  convenience  sake,  to  be  annexed  separately. 


lxxxviii  PRELIMINARY  DISCOURSE. 

equally  efficacious,  they  are  equally  dangerous  with  the  former, 
and  ought,  therefore,  to  be  equally  prohibited.  But  further,  it  is 
obvious  that  the  security  of  a  state  may  be  endangered,  not  only 
by  direct  and  immediate  attempts  to  subvert  it,  but  even  still  more 
successfully,  by  bringing  its  establishments,  civil  and  religious,  or 
its  ministers  and  officers,  into  disgrace  and  contempt;  that  the 
state  and  reputation  of  individuals  are  as  much  or  more  exposed 
than  even  their'persons  or  property  to  malicious  and  insidious  spoli- 
ation, and  that  men  may  be  excited  and  provoked  to  commit  acts 
of  violence  by  collateral  insults,  as  well  as  by  the  most  open  and  di- 
rect solicitations.  It  is,  therefore,  essential  to  the  security  of  every 
civil  government,  as  well  as  to  the  preservation  of  its 
[  *lxxxix  ]  establishments,  the  due  observance  of  its  laws  *and  or- 
dinances, and  protection  of  its  members,  that  restraint 
should  be  imposed,  as  well  upon  indirect  as  direct  attempts  of  this 
nature. 

There  are  other  evils  equally  serious,  against  which  security  is 
necessary.  Mere  positive  laws  are  of  little  avail,  without  the  power- 
ful aid  of  religion  and  morality  ;  it  is  therefore  of  great  importance,  to 
the  well-being  of  society,  that  its  interests  should  be  protected 
against  the  pernicious  influence  of  communications  tending  general- 
ly to  extinguish  men's  religious  faith,  and  to  eradicate  from  their 
minds  the  principles  of  morality. 

For  though  human  laws  which  ought  to  be  definite  and  precise, 
which  must  be  of  limited  extent,  and  which  command  not  but  where 
they  can  compel,  cannot  be  co-extensive  with  the  obligations  of  mo- 
rality ;  and  although  by  far  the  greater  part  of  the  ordinary  duties  of 
a  member  of  society,  fall  not  within  the  scope  of  any  positive  muni- 
cipal laws,  but  must  be  left  to  every  man's  sense  of  propriety  and 
conscience,  and  to  a  salutary  dread  of  public  censure,  the  same  diffi- 
culties do  not  apply  in  restraining  generally,  by  positive  laws,  such 
communications  as  tend  to  instil  bad  principles  or  extirpate  good  ones, 
and  which,  consequently,  tend  not  only  to  the  disregard  and  neglect 
of  all  the  moral,  as  well  as  legal  duties  of  life,  but  to  the  active  prac- 
tice of  every  species  of  immorality.  To  restrain  such  attempts  is 
the  more  necessary,  when  it  is  considered,  that  for  the  perform- 
ance of  most  of  the  common  duties  of  life,  undefined  by  positive 
law,  and  for  the  preservation  of  decency  and  good  order,  religious 
and  moral  principles  and  the  dread  of  public  censure,  are  the  only 
securties. 

*Such  considerations  become  infinitely  more  strong  and  [  *xc  ] 
important,  when  they  are  considered  in  reference  to  the 


PRELIMINARY  DISCOURSE.  xc 

facility  of  communication,  supplied  by  the  art  of  printing,  especially 
when;  its  operation  is  still  further  extended  by  a  general  system  of 
national  education,  which,  in  eftect,  subjects  to  its  power  the  great 
mass  of  the  public. 

The  press  is,  indeed,  a  mighty  instrument  for  the  diffusion  of  know- 
ledge, capable  of  being  applied  to  the  best,  or  perverted  to  the  worst 
of  purposes  ;  eminently  useful  in  promoting  the  interests  of  religion, 
morality,  science,  and  social  happiness,  it  may  be  abused  as  the  in- 
strument of  impiety,  vice,  error,  and  malice.  When,  therefore,  it  is 
considered  how  much,  not  merely  the  opinions,  but  the  feelings  and 
passions  of  the  public,  are  capable  of  being  influenced  and  excited 
by  means  of  this  powerful  agent,  how  few  there  are  who  think  for 
themselves,  and  who  are  not,  it  may  be  insensibly,  guided  and  mov- 
ed by  the  opinions  of  others,  how  great  a  dominion  may  be  exercised 
by  one  strong  mind  over  those  of  millions,  how  favorable  the  gener- 
ality of  mankind  are  to  the  reception  of  the  most  calumnious  charg- 
es ;  how  credulous  in  listening  to  the  most  improbable  misrepresen- 
tations ;  and  how  greatly  every  calumny,  directed  against  an  indi- 
vidual, is  aggravated  by  increased  publicity  ;  when  these  things  are 
considered,  it  will  readily  appear,  of  what  supreme  importance  it 
must  be  in  every  system  of  municipal  law,  on  the  one  hand  to  pro- 
tect the  liberty  of  communication,  and  on  the  other  to  exclude  the 
complicated  and  frightful  mischiefs  which  must  necessarily  emanate 
from  a  corrupted,  venal,  and  licentious  press. 

•What,  then,  are  the   proper  mode  and  measure  of  re-    [    *xci  ] 
straint  ?     Public  security  must  be  provided  for,  either  by 
imposing  previous  restraints,  or  admitting  the  general  right  to  pub- 
lish, by  subjecting  those  who  abuse  the  privilege  to  subsequent  pun- 
ishment. 

And  such  previous  restraints  are  either  absolute  or  qualified. 

The  notion  of  absolute  exclusion  is  too  extravagant  to  require  at- 
tention ;  it  is  a  scheme  calculated  only  for  extreme  cases;  that  is, 
either  for  a  state  of  complete  despotism,  where  the  condition  of  the 
people  cannot  be  worse,  and  where  it  is  the  policy  of  the  oppressors  to 
prevent  its  becoming  better,  or  for  a  state  of  absolute,  but  alas,  ideal 
perfection,  where,  ex  hypothesis, every  alteration  must  be  for  the 
worse,  and  where  to  change  and  to  repent  arc  convertible  expres- 
sions (?i). 

(n)  It  is  scarcely  necessary  to  remind  the  reader,  that  Sir  Thomas  More,  in  his  Euto- 
pia,  makes  the  discussion  of  political  affaire  punishable  with  death. 

Vol.  I.  6 


xci  PRELIMINARY  DISCOURSE. 

What  shall  we  say,  then,  of  that  kind  of  modified  intellectual 
dominion,  which  not  only  may  be,  but  has  been  exercised,  even  un- 
der a  constitution  in  other  respects  free  (o),  that  is  by  subjecting 

the  press  to  the  control  of  a  public  licenser. 
[  *xcii  ]       *At  this  day,  and  in  this  country,  where  the  liberty  of 
the  press  has  so  long  been  beneficially  enjoyed,  though 
not  without  both  great  and  frequent  abuse,  little  need  be  observed 
on  the  subject- of  censorial  restraint. 

Upon  the  question,  whether  such  a  mode  of  restraint  would  be 
expedient,  that  is,  whether  it  would  exclude  more  of  evil  than  it 
introduced,  it  is  very  material  to  recollect,  in  the  first 
[  *xciii  ]  place,  that  the  comparison  *is  not  between  the  evils  occa- 
sioned by  such  restraint  on  the  one  side,  with  those  which 
would  result  from  a  total  absence  of  restraint  on  the  other,  but  merely 
with  the  excess  of  such  evils,  beyond  the  amount  to  which  they  may 
be  corrected  in  the  ordinary  course  of  justice  ;  that  is,  by  inflicting 
penal  visitation  on  those  who,  being  allowed  to  publish  without  pre- 
vious impediment,  abuse  that  license,  by  publishing  what  is  noxious 

(o)  M.  Delolme,  in  his  Essay  on  the  Constitution  of  England,  observes,  "  This 
privilege  (of  our  press)  is  that  which  has  been  obtained  by  the  English  nation  with  the 
greatest  difficulty,  and  latest  in  point  of  time,  at  the  expense  of  the  executive  power. 
Freedom  was,  in  every  other  respect,  already  established,  when  the  English  were  still, 
with  regard  to  the  public  expression  of  their  sentiments,  under  restraints  that  may  be 
called  despotic.  History  abounds  with  instances  of  the  severity  of  the  court  of  Star- 
Chamber,  against  those  who  presumed  to  write  on  political  subjects.  It  had  fixed  the 
number  of  printers  and  printing  presses,  and  appointed  a  licenser,  without  whose  ap- 
probation no  book  could  be  published.  Besides,  as  this  tribunal  decided  matters  by  its 
own  single  authority,  without  the  intervention  of  a  jury,  it  was  always  ready  to  find 
those  persons  guilty  whom  the  court  was  pleased  to  look  upon  as  such  ;  nor  was  it,  in- 
deed, without  ground,  that  the  Chief  Justice  Coke,  whose  notions  of  liberty  were  some- 
what tainted  with  the  prejudices  of  the  times  in  which  he  lived,  concluded  his  eulogiums 
on  this  court,  with  saying,  '  The  right  institution  and  orders  thereof  being  observed,  it 
doth  keep  all  England  in  quiet.'  " 

After  the  Court  of  Star-Chamber  had  been  abolished,  the  Long  Parliament,  whose 
conduct  and  assumed  power  were  little  better  qualified  to  bear  a  scrutiny,  revived  the 
regulations  against  the  freedom  of  the  press.  Charles  the  Second,  and  after  him,  James 
the  Second,  procured  further  renewals  of  them.  These  latter  acts  having  expired  in 
the  year  1G92,  were  at  this  era,  although  posterior  to  the  revolution,  continued  for  two 
years  longer,  so  that  it  was  not  till  the  year  1694,  that  in  consequence  of  the  parliament 
refusing  to  prolong  the  prohibitions,  the  freedom  of  the  press  was  finally  established. 

The  principle  of  restriction,  by  the  discretion  of  a  public  licenser,  still  exists,  in  a 
very  limited  degree,  in  the  instance  of  dramatic  representations.  By  the  st.  10  G.  2. 
c.  28,  no  dramatic  composition  can  be  represented  on  any  public  stage,  without  the  pre- 
vious license  of  the  Lord  Chamberlain.  And  by  some  particular  statutes,  regulations 
are  made  to  facilitate  proceedings,  civil  as  well  as  criminal,  against  the  publishers  of 
newspapers  and  certain  pamphlets.     See  Treatise,  vol.  ii.  p.  43 — 313. 


PRELIMINARY  DISCOURSE.  xciii 

and  illegal.  For  it  cannot  be  doubted,  that  it  would  be  attended 
with  a  less  degree  of  inconvenience,  and  would  interfere  far  less  with 
the  natural  liberty  of  the  subject,  to  inflict  penal  censures  on  those 
who  abused  the  right  of  free  communication,  than  to  extinguish  the 
right,  by  subjecting  every  publication  to  the  summary  control  of  a 
licenser. 

To  impose  a  general  interdict  on  society,  rather  than  restrain  an 
evil  by  the  punishment  of  a  few,  and  those,  such  as  had  actually 
offended  ;  to  deprive  all  of  the  exercise  of  a  valuable  privilege,  be- 
cause some  would  abase  it,  would  truly  be  to  sacrifice  the  wheat  for 
the  sake  of  rooting  up  the  tares  ;  it  would  be  to  exclude  all  that 
was  good,  because  it  was  mixed  with  partial  evil,  a  principle  which, 
were  it  applied  on  all  occasions  where  mischief  were  to  be  prevented, 
would  speedily  exclude  every  thing  that  was  good  and  valuable. 
What  privilege  do  we  boast,  what  blessing  do  We  enjoy,  which  is 
not  greatly,  and  even  frequently  abused  ? 

If  then  the  evil  to  society  from  an  abuse  of  the  liberty  of  free 
communication,  or  as  it  is  usually  termed,  the  liberty  of  the  press, 
could  be  sufficiently  corrected  and  restrained,  by  punishing  such  as 
really  offended  without  any  surrender  or  sacrifice  of  the 
general  right  *to  publish,  there  would  be  an  end  of  the  [  *xciv  J 
question,  and  the  subjecting  the  press  to  the  control  and 
dominion  of  a  licenser,  would  be  an  unnecessary  sacrifice  of  a  most 
valuable  portion  of  the  liberty  of  the  subject.  But,  again,  were  it 
even  to  be  admitted,  that  penal  inflictions  constituted  a  restraint  in- 
adequate to  the  correction  of  the  press — which,  so  long  as  those 
inflictions  may  be  indefinitely  extended,  according  to  the  magnitude 
and  frequency  of  offences  and  the  exigencies  of  the  times,  it  is  dif- 
ficult to  suppose — yet  still  as.it  must,  on  the  other  hand,  lie  allowed, 
that  such  penal  restraints  must  check  and  correct  the  mischief  which 
would  otherwise  result  to  society,  to  a  very  great  extent,  it  is  obvi- 
ous, that  it  is  only  the  excess  of  mischief,  which  cannot  be  so  cor- 
rected, that  ought  fairly  to  be  weigh eil  against  tie1  evils  which  would 
arise  from  the  establishment  of  a  public  licenser. 

In  general,  civil  liberty  has  been  well  defined  to  consist  in  the 
not  being  restrained  by  any  law  which  docs  not  conduce,  in  a  greater 
degree,  to  the  public  good  (p). 

(p)  In  what,  then,  does  the  liberty  of  the  press  precisely  consist  ?  Is  it  liberty  lift 
to  every  one  to  publish  any  thing  that  oomes  into  liis  head;  to  calumniate,  to  blacken 
■whomsoever  he  pleases  ?  No;  the  same  laws  that  protect  the  person  and  property  nf  in- 
dividuals, do  also  protect  his  reputation;  and  they  decree  against  libels,  when  really  so» 


xciv  PRELIMINARY  DISCOURSE. 

[  *xcv  ]  *Until,  therefore,  it  were  shown  that  the  liberty  of  free 
and  unreserved  intellectual  communication,  on  all  sub- 
jects of  common  interest,  ought,  for  the  public  good,  to  be  surrend- 
ered to  the  exercise  of  an  authority  and  dominion  arbitrary  and 
irresponsible,  the  contrary  ought  to  be  inferred,  it  would  argue  a 
strange  degree  of  apathy,  even  folly,  to  sacrifice  so  valuable  a  por- 
tion of  natural  liberty,  without  the  fullest  conviction  that  at  the 
least  an  equivalent  was  received  in  return,  and  the  burthen  of  proof 
would  clearly  be  incumbent  on  those  who  advocated  such  a  surrender. 
How  difficult  must  such  proof  be,  when  experience,  the  best  and 
safest  guide,  bears  testimony  to  the  inexpediency  of  such  a  sacri- 
fice (#). 

punishments  of  much  the  same  kind  as  are  established  in  other  countries.  But,  on  the 
other  hand,  they  do  not  allow,  as  in  other  states,  that  a  man  shall  be  deemed  guilty  of  a 
crime  for  merely  publishing  something  in  print,  and  they  appoint  a  punishment  only 
against  him  who  has  printed  things  that  are  in  their  nature  criminal,  and  who  is  de- 
clared to  be  guilty  of  being  so  by  twelve  of  his  equals  appointed  to  determine  on  his 
case. — Delolme. 

Those  laws  are  the  most  favorable  to  liberty  which  define  that  which  is  criminal,  and, 
consequently,  make  liberty  the  general  rule,  and  a  penal  restraint  the  exception.  M.  De- 
lolme who  had  conceived  high  notions  concerning  the  liberties  of  Englishmen,  had  sup- 
psed  that  every  action  was  secured  by  positive  laws  carefully  worded,  and  was  at  last 
surprised  to  find  that  the  liberty  of  the  press  was  founded  simply  upon  the  absence  of 
prohibition. 

(q)  A  very  popular  ethical  writer  has  thus  expressed  himself  upon  this  subject.  "If 
nothing  may  be  published  but  what  civil  authority  shall  have  previously  approved, 
power  must  always  be  the  standard  of  truth ;  if  every  dreamer  of  innovation  may  prop- 
agate his  projects,  there  can  be  no  settlement;  if  every  murmurer  at  government  may 
diifuse  discontent,  there  can  be  no  peace;  and  if  every  sceptic  in  theology  may  teach  his 
follies,  there  can  be  no  religion.  The  remedy  against  these  evils  is  to  punish  the  authors, 
for  it  is  yet  allowed,  that  every  society  may  punish,  though  not  prevent,  the  publication 
of  opinions  which  that  society  shall  think  pernicious:  but  this  punishment,  though  it 
may  crush  the  author,  promotes  the  book;  and  it  seems  not  more  reasonable  to  leave  the 
right  of  printing  unrestrained,  because  writers  may  be  afterwards  censured,  than  it 
would  be  to  sleep  with  doors  unbolted,  because  by  our  laws  we  can  hang  a  thief." 

The  most  satisfactory  refutation  which  can  possibly  be  given  to  a  theoretical  suggestion 
of  danger,  is  that  which  experience  supplies:  the  press  in  this  country  has,  for  consider- 
ably more  than  a  century,  been  rescued  from  the  control  of  a  licenser;  yet  peace,  tran- 
quility, and  religion  still  survive  amongst  us. 

But,  surely,  with  all  respect  to  the  memory  of  one  who  was  justly  accounted  a  giant 
in  his  day  it  is  but  weak  and  timid  policy  to  surrender  a  privilege  estimable  and  valuable 
in  its  own  nature,  because  it  may  be  perverted  and  abused.  If  men  are  to  be  prohibited 
from  public  communication  by  writing  or  printing,  if  the  pen  and  press  are  for  this  rea- 
son  to  be  placed  under  arbitrary  restraints,  why  should  even  the  tongue  be  privileged  ? 
Why  should  any  man  be  allowed  to  speak  in  public,  when  it  is  possible  .that  he  may 
utter  sedition  or  blasphemy  ?  Why  allow  books  to  be  printed  at  all;  for  the  very  arbi- 
ters of  religion,  politics,  morals  and  taste  may  as  well  as  others,  be  subject  to  error  or 


PRELIMINARY  DISCOURSE.  xcv 

*Onc  of  the  most  obvious  evils  which  would  result  [  'xevi  ] 
from  previous  restraint  on  the  liberty  of  the  press,  *un-  [  'xcvii  ] 
der  a  constitution  whore  the  people  were  possessed  of 
influence,  would  be  the  destroying,  or  at  least  weakening,  the  mu- 
tual confidence  which  ought  to  subsist  between  the  people  and  the 
government,  and  which  is  essential  to  a  vigorous  administration  of 
public  affairs. 

Under  such  a  constitution,  public  confidence  must  rest  on  public 
opinion,  and  public  opinion  cannot  be  manifested,  or  even  exist,  un- 
less the  measures  of  government  be  known,  and  be  subject  to  free 
discussion  and  comment  (r). 

even  corruption;  and  what  would  the  state  of  society  be,  when  not  only  were  vicious 
and  corrupt  publications  sent  forth  under  the  sanction  and  impress  of  public  authority, 
but  all  that  was  really  edifying  and  instructive  was  wickedly  suppressed.  The  lib- 
erty of  the  press  and  rational  freeJom  of  public  discussion  are  the  real  bolts  and  bars 
by  which  alone  depredators  on  the  religious  and  political  rights  of  society  are  to  be  shut 
out,  and  the  interest  of  the  community  preserved.  To  destroy  these  would,  in  a  political 
sense,  most  surely  be  to  sleep  with  doors  unbolted,  without  even  the  poor  consolation 
of  being  able  to  hang  the  thief. 

When  the  art  of  printing  was  discovered,  it  was  justly  apprehended  that  it  would 
prove  an  instrument  of  mighty  force  in  its  operation  on  public  opinion  in  all  matters  of 
great  and  common  interest.  But  though  many  generations  have  now  elapsed  since  the 
date  of  this  noble  invention,  its  operation  was  necessarily  restrained  and  limited,  whilst 
the  great  mass  of  the  people,  consisting  of  those  who  were  most  likely  to  be  influenced 
by  its  means,  were  unable  to  read:  it  was  reserved  for  later  times  to  give  an  impetus 
to  its  powers,  by  extending  the  means  of  knowledge  to  the  lowest  classes,  and  opening  to 
a  portion  of  society,  far  exceeding  the  rest  in  numbers  anil  physical  strength,  the  sources 
of  knowledge,  and  thus  affording  them  the  means  of  judging,  and,  what  is  of  greater 
importance  in  a  political  point  of  view,  of  acting  for  themselves.  It  is  to  this  important 
change  in  circumstances  and  education,  as  well  as  to  the  great  increase  of  wealth  and 
population  in  this  country,  that  the  multiplication  of  newspapers,  the  principal  vehicles 
for  the  communication  of  public  measures  and  events,  and  of  the  various  opinions  and 
comments  to  which  they  gave  rise  is  to-be  attributed. 

Whether  it  were  wise  or  politic  to  encourage  so  great  a  change  belongs  not  to  the 
present  occasion  to  consider.  That  no  evil  consequences  have  as  yet  resulted,  which 
can  be  at  all  placed  in  competition  with  the  splendid  advantages  of  an  open  and  free 
press,  or  to  induce  the  most  timid  to  regret  its  emancipation,  seems  to  be  moat  certain. 
It  is  only  from  the  licentious  abuse  of  our  liberty  that  danger  is  to  be  apprehended;  and 
those  are  justly  to  be  regirded  as  the  greatest  enemies  to  freedom,  who  by  their  perver- 
sion of  the  blessing,  endeavor  to  render  it  a  curse,  and  who  endanger  the  liberties  of 
all  by  abusing  the  most  valuable  of  their  own,  for  unworthy,  base,  and  venal  purposes. 

The  transition  is  by  no  means  difficult  or  improbable  from  a  licentious  abuse  of  liberty 
to  severe  and  excessive  restraint;  in  such  respects,  the  dinger  always  is  of  running 
into  extremes;  to  escape  one  pressing  evil,  mankind  arc  too  apt  to  seek  an  insecure  re- 
fuge in  its  opposite. 

(r)  M.  Delolme,  in  his  Treatise  on   the   Constitution  of  England,  (p.  292,  ed.  1816, 

6* 


xcvii  PRELIMINARY  DISCOURSE. 

"  *xcviii  ]  *Such  a  government,  from  which  public  confidence  and 
public  support  are  withdrawn,  must  necessarily  be  timid 
and  indecisive  in  all  measures  of  importance  ;  the  responsibility  of 
those  who  conduct  public  affairs,  is  greatly  increased  in  pursuing  a 
course  of  which  the  body  of  the  people  disapproves,  whilst  their 
means  of  accomplishing  objects  of  magnitude  and  difficulty  are 
necessarily  diminished,  and  that  energy  and  spirit  to  which  public 
approbation  and  applause  are  essential,  are  weakened  and  impaired. 

Nor  is  public  confidence  in  the  administration  of  affairs,  more 
essential  to  internal  safety,  than  it  is  to  security  from  abroad.  It 
were  absurd  to  suppose  that  a  government  could  command  respect 
abroad,  which  was  hated  or  despised  at  home.  Such  a  condition  of 
things  must  necessarily  engender  among  foreigners  an  opinion  of  in- 
ternal weakness,  and  for  a  nation  to  be  weak,  or  even  to  be  account- 
ed so,  is  to  be  contemptible  and  insecure. 

The  advantage  of  free  and  unrestricted  communication,  on  all 
political  subjects,  is  great  and  reciprocal ;  if  the  people  have  thus  an 
opportunity  of  forming  and  expressing  their  opinion  on  public  meas- 
ures, those  who  administer  affairs  have  also  the  means  afforded  them 
of  becoming  acquainted  with  the  disposition,  sentiments,  and  wishes 
of  the  people,  of  availing  themselves  of  beneficial  and  use- 

^xcix  ]  ful  suggestions,  of    affording  explanation  and  *redress 
where  complaints  are  well  founded  ;  in  short  of  securing 
that  esteem,  respect,  and  confidence  on  the  part  of  the  people  which 
are  essential  to  an  useful  and  vigorous  administration  (s). 

The  liberty  of  political  discussion  is  valuable,  inasmuch  as  it 
tends  to  preserve  stability  in  the  political  constitution,  enables  the 
people   to   exert  a   salutary   influence,  and   prevents   violent  and 

observes,  on  this  suject,  "  we  may  therefore  look  upon  it  as  a  further  proof  of  the 
soundness  of  the  principles  on  which  the  English  constitution  is  founded,  that  it  has  al- 
lotted to  the  people  themselves  the  province  of  openly  canvassing  and  arraigning  the 
conduct  of  those  who  are  invested  with  any  branch  of  public  authority,  and  that  it  has 
thus  delivered  into  the  hands  of  the  people  at  large,  the  exercise  of  the  censorial  power. 
Every  subject  in  England  has  not  only  a  right  to  present  petitions  to  the  king  or  the 
houses  of  parliament,  but  he  has  a  right  to  lay  his  complaints  and  observations  before 
the  public  by  means  of  an  open  press. 

(s)  Nee  vero  negligenda  est  fama  nee  mediocre  telum  ad  res  gerendas  existimare  op- 
ortet  benevolentiam  civium.  Cic.  de  Amic.  502.  Though  some  make  slight  of  libels, 
yet  you  may  see  by  them  (observes  Selden,)  how  the  wind  sits.  As,  take  a  straw,  and 
throw  it  up  into  the  air,  you  shall  see  by  that  which  way  the  wind  sets,  which  you  shall 
not  do  by  casting  up  a  stone  ;  more  solid  things  do  not  show  the  complexion  of  the 
times  so  well  as  ballads  and  libels. — Selden's  Table  Talk. 


PRELIMINARY  DISCOURSE.  xcix 

sudden  changes  (0-  'These,  however,  are  positions  [  *c  ] 
which  must  be  carefully  limited  to  those  cases  where  the 
constitution  is  constructed  on  a  fair  and  equitable  basis,  thai  is, 
where  no  larger  a  portion  of  natural  liberty  has  been  surrendered 
for  the  common  good  than  is  necessary  for  that  end,  or  at  all  events, 
where  there  is  no  great  arid  striking  disproportion  between  the  bene- 
fit received  and  price  paid  for  it ;  in  all  other  cases  this  species 
of  liberty  would  tend  to  produce  political  changes  and  alterations 
rather  than  stability.  Under  a  rigid  democracy,  or  any  other  kind 
of  government  where  the  people,  highly  tenacious  of  nat- 
ural liberty,  contributed  too  small  a  portion  of  it  *to  ren-  [  *ci  ] 
der  sufficiently  strong  and  effective,  it  is  natural  that  dema- 

(/)  The  liberty  of  the  press,  which  consists  in  the  liberty  which  every  subject  pos- 
sesses of  publishing  what  lie  will,  without  previous  restraint,  suhject,  however,  to  penal 
censures  if  he  publish  what  is  malicious  and  illegal,  constitutes  the  great  excellence  of 
the  British  constitution.  On  this  subject  we  may  trust  to  the  evidence  of  learned  for- 
eigners, without  fear  lest  the  judgment  should  be  warped  and  biassed  by  native  preju- 
dices. M.  Cottu,  a  learned  advocate  of  Paris,  after  having  devoted  much  personal 
attention  to  the  laws  and  constitution  of  this  country  thus  expresses  himself  :  "  The 
liberty  possessed  by  all  classes  of  the  nation,  of  acquainting  government  legally,  and 
without  recurring  to  mobs  and  insurrections,  with  their  private  opinion  on  all  the 
measures  of  administration,  forms  the  main  perfection  of  the  English  constitution."  — 
Cottu,  194,  (English  Translation.) 
And  again, 

"  Whenever  any  important  subject  is  submitted  to  the  discussion  of  parliament,  the 
king  and  the  two  houses  have  the  advantage  of  seeing  clearly  the  nation's  opinion  on 
the  proposed  measure,  and  ascertaining  how  far  it  should  be  pressed  or  abandoned  ;  and 
it  is  thus  that  the  strength  of  the  people,  which,  united  in  one  single  mass,  would  form 
a  torrent,  whose  accumulated  waves  might,  at  the  first  obstacle,  overwhelm  the  govern- 
ment, is  divided,  on  the  contrary,  into  an  infinite  number  of  individual  bodies,  resem- 
bling a  number  of  peaceful  brooks,  which  adorn  and  fertilize  the  plains  they  water, 
without  the  power  of  ever  doing  mischief." — lb.  196. 

On  such  subjects,  the  treasures  of  history  contribute  less  of  information  than  on  any 
other  subject  of  public  interest  and  policy.  Were  the  laws  of  ancient  nations  more 
comprehensive  and  complete  than  we  find  them  to  be,  a  total  change  in  those  essential 
circumstances  to  which  the  restrictive  laws  are  adapted,  would  require  a  corresponding 
alteration  in  the  laws  themselves.  The  ordinances  by  which  a  great  nation  composed  of 
subjects  jealous  of  their  freedom,  amongst  whom  political  knowledge  is  daily  diffused  by 
means  of  the  press,  who  take  a  lively  interest  in  all  public  measures,  and  who  possess 
the  means  of  expressing  their  opinion  on  sucli  subjects,  can  afford  but  few  points  of 
comparison  witli  any  former  age  or  country.  When  the  art  of  printing  was  yet  unknown, 
the  great  mass  of  the  people,  destitute  of  information,  could  seldom  be  moved,  but  on 
great  and  sudden  occasions,  to  make  any  important  political  exertion,  and  then  only  by 
fits  and  starts,  according  to  the  operation  of  violent  and  transitory  causes.  How  much 
happier  are  the  times  when  force  and  violence  give  way  to  reason,  when  the  strong  and 
speedy  expression  of  public  opinion  often  produces  greater  results  than  could  formerly 
have  been  obtained  by  a  sanguinary  appeal  to  arms. 


CI 


PRELIMINARY  DISCOURSE. 


gogucs,  ambitious  of  popular  influence,  should  abuse  their  unsurren- 
dered excess  of  power  to  exalt  each  his  own  individual  authority  ; 
in  such  a  case,  it  is  obvious,  that  unrestrained  freedom  of  political 
discussion  would  be  very  ineffectual-  towards  securing  peace  or  per- 
manency in  public  affairs.  In  such  instances,  even  fair  comment 
would  but  betray  to  the  thinking  and  rational,  the  weakness,  in  effi- 
cacy, and  instability  of  their  political  system,  and  induce  them  to 
wish  for  change,  whilst  party  zeal,  instead  of  attributing  the  mischief 
to  its  true  cause,  the  want  of  a  supreme  power,  possessing  reputation* 
confidence,  and  strength,  sufficient  to  secure  the  public  peace  from 
repeated  aggressions  by  turbulent  factions,  would  but  foment  succes- 
sive struggles  for  popular  ascendency  by  mutual  and  intemperate 
recriminations,  at  the  expense  of  a  constant  diminution  of  public 
strength  and  security. 

On  the  other  hand,  under  an  arbitrary  and  despotic  form  of  gov- 
ernment, where  the  people  had  surrendered  too  large  a  portion  of 
their  liberties,  discussions  tending  to  show  the  inexpediency  of  their 
political  condition,  would  necessarily  tend  also  to  render  the  people 
discontented,  dissatisfied,  and  anxious  for  change,  whilst  it  would  be 
the  interest  of  those  who  thus  possessed  an  excess  of  power  beyond 
what  was  just,  to  prevent  and  hinder  such  communications,  in  order 
to  oppose  that  tendency.  And  it  is  obvious,  that  in  proportion  to 
the  degree  of  oppression  under  which  the  people  labored,  the  strong- 
er would  be  the  motive  with  those  in  power  to  suppress  the  discus- 
sion of  public  measures  and  silent  remonstrances,  for 
[  *cii  ]  the  greater  would  be  the  *probability  of  change,  either 
reluctantly  yielded  to  the  influence  of  public  opinion,  or 
compelled  by  an  appeal  to  force.  And  thus  it  is  that,  under  a  state 
of  absolute  despotism,  where  a  successful  tyranny  has  reduced  the 
people  to  the  ultimum  in  servitute,  it  becomes  a  necessary  incident 
to  the  same  wicked  policy  to  compel  men,  not  to  forget  their  wrongs, 
for  memory  must  remain  to  the  most  abject,  but  to  suffer  them  in 
silence  (w). 

(w)  Dedimus  profecto  grande  patientiae  documentum  et  sicut  vetus  setus  vidit  quid 
ultimum  in  libertate  esset,  ita  nos  quid  in  servitute,  adempto  per  inquisitiones  et  lo- 
quendi  audientique  commercio.  .Memoriam  quoque  ipsam  cum  voce  perdidissemus  si 
tam  in  nostra  potestate  esset  oblivisci  quam  tacere.  Nunc  demum  redit  animu9,  &c. 
Such  were  the  affecting  observations  of  Tacitus,  in  describing  the  happy  transition  to 
the  government  of  Tmj  in  from  a  state  of  abject  suffering  under  the  rod  of  Domitian. 

The  Emperors  Julius  and  Augustus  had  the  magnanimity  to  despise,  or  at  least  the 
prudence  to  overlook,  many  instances  of  personal  calumny  against  themselves. 


PRELIMINARY  DISCOURSE.  cii 

*It  is  only  under  a  just  and  equitable  constitution  that  'ciii  ] 
freedom  of  discussion  tends  to  the  desirable  ends  of 
peace,  permanency,  and  security.  Where  a  reasonable  and  fair 
proportion  exists  between  the  quantum  of  liberty  which  is  surren- 
ered,  and  the  advantages  derived  from  a  free  constitution  and 
equal  laws,  the  people  are  little,  at  all  events  they  are  much  less 
likely  to  be  influenced  by  the  desire  of  change  ;  and  the  more 
they  know  and  discuss  the  nature  of  their  political  Bystem;  the 
greater  must  be  their  attachment  to  the  existing  state  of  things, 
whilst  the  notoriety  of  all  public  measures,  the  privilege  of  free 
discussion,  of  openly  expressing  public  opinion,  and  the 
degree  of  influence  which  that  opinion  *must  necessarily  Viv  ] 
possess  (y),  tend  to  inspire  the  people  with  confidence  in 

Antonii  cpistolaj,  Bruti  conciones,  falsa  quidem  in  Augustem  probra  sed  multa  cum 
acerbitate  habent.  Carolina  Bibaculi  et  Catulli  referta  contutneliis  Ccesarum  legnntur. 
Sed  ipse  Divus  Julius  ipse  Divus  Augustus  et  tulere  ista  et  reliuquere  ;  hand  facile 
dixerim  niodcratione  magis  an  sapientia  ;  nainque  spreta  exolescuut,  si  irascare  adgnita 
videntur  ;  non  attingo  Graecos  quorum  non  modo  libertas  etiam  libido  impunita,  aut  si 
quis  advertit  dicta  dictis  ultus  est. 

These  were  the  observations  attributed  to  Cremutius  Cordus,  who  was  accused  under 
the  gloomy  reign  of  Tiberius,  with  having  extolled  Brutus  and  Cassias,  and  asserted 
that  Cassius  was  the  last  of  the  Romans.  Postulatur,  says  the  historian,  novo  ac  tunc 
primum  audito  crimine  quod  editis  annalibus  laudatoque,  M.  BrutoC.  Cassium  Romano- 
rum  ultimum  dixisset.  Accusabant  Satrius  Secundus  et  Pinarius  Natta,  Sejani  Clientes- 
id  perniciabile  reo  et  Coesar  truci  vultu  defensionem  accipiens.  So  little  hope  had  the 
unfortunate  orator  of  experiencing  clemency  or  even  justice,  that,  after  making  his  de- 
fence before  the  senate,  he  sought  death  in  abstinence.  One  of  the  most  bitter  reflec- 
tions on  the  memory  of  Tiberius,  as  a  ruler,  is  the  record  of  the  historian,  that  a  soli- 
tary act  of  clemency  to  a  libeller  diffused  a  transitory  feeling  of  satisfaction  (mudica 
retitia)  over  a  desponding  people. 

His  tamen  adsiduis  tamque  mcestis  modica  lcetitia  interjocitur  quod  C.  Cominium 
Equitem  Romanum  probrosi  in  se  carminis  convictum  Ccesar  precibus  fratris  que  sen  i- 
tor  erat  concussst.     Tac.  Annal.  1.4. 

According  to  M.  Montesquieu,  "  no  government  is  so  averse  to  satirical  writings  as 
the  aristocratical.  There  the  magistrates  are  petty  sovereigns,  but  not  great  enough  to 
despise  affronts.  If  in  a  monarchy  a  satirical  stroke  is  designed  against  the  prince,  he 
is  placed  on  such  an  eminence,  that  it  does  not  reach  him,  but  an  aristocratical  lord  is 
pierced  to  the  very  heart.  Hence  the  decemvirs,  who  formed  an  aristocracy,  punished 
satirical  writings  with  death."      B.  12,  c.  13. 

It  may,  for  reasons  hereafter  given,  be  doubted,  whether  the  dccemviral  law  was  so 
severe  as  M.  Motesquieu  supposes  ;  there  is  at  least  no  proof  that  so  cruel  a  law  was 
ever  enforced  to  its  extent.  On  the  other  hand,  Augustus  and  Tiberius  first  violated 
the  law  by  a  tyrannical  construction,  which  brought  satirists  within  the  penalties  of 
treason,  and  subjected  them  to  capital  punishment. 

(v)  M.  Delolme,  in  his  Essay  on  the  British  Constitution,  after  commenting  on  the 
effect  of  laws  which  allow  to  the  people  full  scope  for  the  expression  of  their  sentiments, 
concludes  his  observations  with  the  following  remarks: — 

"  In  short,  whoever  considers  what  it  is  that  constitutes  the  moving  principle  of  what 


civ  PRELIMINARY  DISCOURSE. 

their  rulers,  and  diminish  the  probability  of  popular  disaffection 
and  civil  commotion. 

On  the  other  hand,  the  same  considerations  render  any  encroach- 
ment upon  the  liberties  of  the  people,  if  not  impracticable  at  least 
difficult.      It  would  be  impossible  that  any  formidable  practices 
against  their  interests  could  long  be  carried  on  in  se- 
*ev  ]     cret  (w),  and  to  make  them  known,  to  expose  their  au- 
thors, and  subject  them  to  the  strong  expression  of  public 
indignation,  would  be  to  defeat  their  purpose  ;  at  all  events,  would 
give  great  facility  to  resistance,  and  in  proportion,  render  any  such 
attempt  more  difficult    and   dangerous,  and  ultimate  success  the 
more  improbable  (x). 

we  call  great  affairs,  and  the  invincible  sensibility  of  man  to  the  opinion  of  his  fellow- 
creatures,  will  not  hesitate  to  affirm,  that  if  it  were  possible  for  the  liberty  of  the  press 
to  exist  in  a  despotic  government,  and  (what  is  not  less  difficult)  for  it  to  exist  without 
changing  the  constitution,  this  liberty  would  alone  form  a  counterpoise  to  the  power  of 
the  prince.  If,  for  example,  in  an  empire  of  the  east,  a  place  could  be  found,  which, 
rendered  respectable  by  the  ancient  religion  of  the  people,  might  ensure  safety  to  those 
who  should  bring  thither  their  observations  of  any  kind,  and  from  this  sanctuary  printed 
papers  should  issue,  which,  under  a  certain  seal,  might  be  equally  respected,  and  in 
which,  their  daily  appearance,  should  examine  and  freely  discuss  the  conduct  of  the 
cadis,  the  pashas,  the  viziers,  the  divan,  and  the  sultan  himself,  that  would  immediately 
produce  some  degree  of  liberty." — Delolme  on  the  Constitution  of  England,  303,  ed. 
1816.  Again,  the  same  learned  foreigner  observes,  p.  304,  "  another  effect,  and  a  very 
considerable  one,  of  the  liberty  of  the  press,  is,  that  it  enables  the  people  effectually  to 
exert  those  means  which  the  constitution  has  bestowed  upon  them,  of  influencing  the 
motions  of  the  government." 

(w)  "  Private  individuals,  unknown  to  each  other,  are  forced  to  bear  in  silence  injuries 
in  which  they  do  not  see  other  people  take  a  concern.  Left  to  their  own  individual 
strength,  they  tremble  before  the  formidable  and  ever-ready  power  of  those  who  govern; 
and  as  the  latter  well  know,  and  are  even  apt  to  over-rate  the  advantages  of  their  own 
situation,  they  think  that  they  may  ventuie  upon  any  thing.  But  when  they  see  that 
all  their  actions  are  exposed  to  public  view,  that  in  consequence  of  the  celerity  with 
which  all  things  become  communicated,  the  whole  nation  forms,  as  it  were,  one  continued 
irritable  body,  no  part  of  which  can  be  touched  without  exciting  an  universal  tremor 
they  become  sensible  that  the  cause  of  one  individual  is  the  cause  of  all,  and  that  to 
attack  the  least  among  the  people,  is  to  attack  the  whole  people." — Delolme  on  the  Con- 
stitution of  England,  p.  318.  ed.  181G. 

(x)  With  regard  those  who,  whether  from  personal  privileges,  or  by  virtue  of  com- 
mission from  the  people,  are  intrusted  with  the  higher  part  of  government,  as  they, 
in  the  mean  time,  see  themselves  exposed  to  public  view,  and  observed,  as  from  a  dis- 
tance, by  men  free  from  the  spirit  of  party,  and  who  place  in  them  but  a  conditional 
trust,  they  are  afraid  of  exciting  a  commotion,  which,  though  it  might  not  prove  the  de- 
struction of  all  power,  yet  would  surely  prove  and  immediately  be  the  destruction  of 
their  own.  And  if  we  might  suppose,  that  through  an  extraordinary  conjunction  of 
circumstances,  they  should  resolve  among  themselves,  upon  the  sacrifices  of  those  laws 
on  which  public  liberty  is  founded,  they  would  no  sooner  lift  up  their  eyes  towards  that 


PRELIMINARY  DISCOURSE.  cv 

'The  influence  which  the  subjection  of  the  press  to  the  ~  *cvi  ] 
control  of  a  licenser  must  necessarily  have  on  the  spirit 
and  manners  of  a  free  nation,  is  not  to  be  disregarded,  on  account 
of  its  more  immediate  and  important  political  consequences.  What 
could  more  directly  tend  to  lower  and  subdue  the  spirit  of  a  free 
people,  and  to  render  them  unfit  for  the  enjoyment  and  maintenance 
of  their  rights,  than  to  subject  their  minds  to  a  state  of  intellectual 
thraldom  ?  What  more  effectually  restrain  and  fetter  the  exertions 
of  genius  and  of  talent,  than  the  melancholy  consciousness  that  their 
happiest  efforts  might  be  rendered  fruitless  and  abortive;  that  the 
avenues  to  fame,  honor  and  preferment,  might  be  closed  against 
them  by  the  caprice,  the  ignorance,  or  it  may  be  the  malice  of  a 
despotic  arbiter,  irresponsible,  and  from  whose  tribunal  there  was 
no  appeal.  Were  ages  to  be  spent  in  the  attempt,,  no  other  scheme 
or  device  could  possibly  be  discovered  so  admirably  calculated  as 
this,  to  retard  the  progress  of  science  arid  of  letters,  to  hinder  all 
improvement  in  religion,  in  politics,  or  morals,  to  enervate  the  pub- 
lic mind  and  prepare  it  for  every  species  of  degradation. 

Finally,  the  very  exercising  of  such  a  control  would  necessarily 
add  greatly  to  the  responsibility  of  those  who  administered  the 
affairs  of  state  ;  for  professing  to  reject  all  that  was  injurious,  they 
must  be  taken  to  approve  and  sanction  all  that  they  allowed  to  be 
published. 

It  remains  to  make  one  or  two  observations  on  the  abuse  of  this 
invaluable  privilege.  If  at  any  time  the  public  press  should  have 
become  generally  venal,  corrupt  and  licentious,  should 
teem  with  profligate  and  'immoral  publications  with  art-  'cvii  ] 
ful  and  studied  misrepresentations,  with  wanton  calum- 
nies on  the  characters  of  the  well-deserving,  or  what  is  equally  of- 
fensive with  renal  and  fulsome  panegyric  upon  knaves,  the  necessary 
conclusion  would  be,  that  the  very  condition  of  society  was  tainted 
and  unsound.  To  say  that  the  press  is  corrupt  is  but  a  figurative  ex- 
pression ;  it  means,  in  reality,  that  one  set  of  men  publishes,  whilst 
the  rest  of  society  reads,  approves  of,  and  encourages  vicious  pro- 
ductions. 

extensive  assembly  which  views  them  with  a  watchful  attention,  than  they  would  find 
their  public  virtue  return,  and  would  make  haste  to  resume  that  plan  of  conduct,  out 
of  the  limits  of  which  they  can  expect  nothing  but  ruin  and  perdition. 

The  power  of  the  people  is  not  when  they  strike,  but  when  they  keep  in  awe;  it  is 
when  they  can  overthrow  every  thing  that  they  never  need  move;  and  Manlius  included 
all  in  four  words,  when  he  said  to  the  people  of  Home — Ostendite  Bellum  pacem  habe- 
bitis.     Delolme  on  the  Constitution  of  England,  p.  o21,  ed.  of  181G. 


cvii  PRELIMINARY  DISCOURSE. 

But  if  such  should  be  the  disposition,  or,  at  all  events,  the  apathy 
of  the  public,  in  regard  of  the  morals  of  the  press,  as  to  encourage 
or  tolerate  its  ministers  in  committing  licentious  violations  of  truth 
and  decency,  it  is  manifest,  not  only  that  the  temptation  would  al- 
wavs  be  sufficient  to  ensure  a  constant  supply,  at  all  risks,  of  scan- 
dalous and  illegal  matter,  but  that  all  attempts  to  earn  public  favor 
by  honest  means  would  be  vain  and  fruitless. 

The  public  in  fact  are,  or  ought  to  be,  the  arbiters,  di- 
[  *cviii  ]  rectors,  and  movers  of  the  press  (if)  those  who  daily  Min- 
ister to  their  information  and  curiosity,  are  their  purvey- 
ors and  agents.  In  the  discharge  of  the  important  and  lucrative  of- 
fice of  catering  for  and  ministering  to  the  literary  appetite  of  the 
public,  it  is  manifest  that  candidates  for  popular  favor  must  consult 
the  public  taste,  and  that,  as  there  will  never  be  wanting  talent, 
ability,  and  diligence,  adequate  to  the  enlightening  and  improving 
the  public,  so  long  as  veracity,  integrity,  and  ability,  are  recommen- 
dations to  their  patronage  ;  on  the  other  hand,  agents  will  always  be 
ready  to  prostitute  their  talents  for  the  gratification  of  a  corrupt  and 
vitiated  taste: 

The  real  corrupters  of  the  press  are  the  public  themselves,  and 
the  licentiousness  of  the  press,  though  it  tend  greatly  to  increase 
the  evil,  is  yet  to  be  regarded  rather  as  symptomatic  of  a  defect  in 
public  morals,  than  as  the  cause  of  the  declension. 

If  a  man  patronises  a  series  of  licentious  publications  by  purchas- 
ing them,  or  even  contributing  towards  the  purchase,  what  right  can 

(i/)  Such  observations  are  still  more  pertinent,  where  the  public,  by  means  of 
the  trial  by  jury,  possess  the  salutary  and  constitutional  means  of  control.  Upon  this 
subject,  Lord  Camden,  on  an  occasion  of  great  importance,  thus  expressed  himself- 
Case  of  seizure  of  papers,  11  St.  Tr.  328. 

"  Before  I  conclude,  I  desire  not  to  be  understood  as  an  advocate  for  libels.  All  civil- 
ized governments  have  punished  calumny  with  severity  and  with  reason;  for  these  com- 
positions debauch  the  manners  of  the  people;  they  excite  a  spirit  of  disobedience,  and 
enervate  the  authority  of  government;  they  provoke  and  excite  the  passions  of  the 
people  against  their  rulei-s,  and  rulers  oftentimes  against  the  people. 

"  After  this  description,  I  shall  hardly  be  considered  as  a  favorer  of  these  pernicious 
productions.  I  will  always  set'my  face  against  them  when  they  come  before  me;  and 
shall  recommend  it  most  warmly  to  the  jury  always  to  convict,  when  the  proof  is  clear. 
They  will  do  well  to  consider  that  unjust  acquittals  bring  an  odium  upon  the  press  itself, 
the  consequence  whereof  may  be  fatal  to  liberty;  for  if  kings  and  great  men  cannot  ob- 
tain justice  at  their  hands  by  the  ordinary  course  of  law,  they  may  at  last  be  provoked 
to  restrain  that  press,  which  the  juries  of  their  country  refuse  to  regulate.  Where 
licentiousness  is  tolerated,  liberty  is  in  the  utmost  danger,  because  tyranny,  bad  as  it  is, 
is  better  than  anarchy,  and  the  worst  of  governments  is  more  tolerable  than  no  govern- 
ment at  all." 


PRELIMINARY  DISCOURSE.  cviii 

he  have  to  complain  of  the  impurity  of  the  public  press,  the  immor- 
ality of  the  age,  or  the  inadequacy  of  municipal  restraint ;   it  is  he 
who  ofl'ends  against  truth,  against  decency  and  morals, 
who,  *with  some   thousand  others,  encourages   and  sup-        *cix 
ports,  in  a  state  of  affluence,  the  less  guilty  minister  of  the 
press ;  the  latter  publishes  that  which  is  scandalous  and  impure, 
merely  because,  so  long  as  he  finds  it  Lucrative  to  do  so,  he  must  nec- 
essarily suppose  that  he  gratifies  those  who  pay  him  for  such  servi- 
ces.    In  point  of  morals,  to  contribute  to  the  existence  and  diffusion 
of  noxious  and  offensive  publications,  is  to  share  largely  in  the  guilt. 

In  short,  as  there  can  be  no  greater  security  for  the  truth  and 
honor  of  public,  or  the  integrity  of  private  men,  than  the  wholesome 
apprehension  of  public  censure,  it  is  of  vital  importance  to  society 
to  consider  that  the  preservation  of  this  mighty  and  salutary  moral 
power,  efficacious  and  entire,  rests  wholly  with  the  people  themselves  ; 
that  they  must  not  look  for  effectual  protection  from  the  municipal 
law,  or  expect  a  remedy  for  the  natural  consequence  of  their  own  su- 
piueness  ;  and  that,  if  by  culpable  and  careless  indifference,  they  suf- 
fer the  public  press  to  be  corrupted  and  perverted  to  evil  purposes, 
they  not  only  reject  a  mighty  engine  adequate  to  the  protection  of 
their  best  interests,  but  surrender  it  to  enemies  who  will  fatally  ap- 
ply it  to  undermine  the  very  foundations  of  social  happiness. 

The  abuse  of  the  liberty  of  the  press  tends  most  directly  to  de- 
prive it  of  all  salutary  and  beneficial  power.     The  influence  of  public 
opinion  on  political  conduct,  operates  on  a  mixed  principle  of  shame 
and  of  interest,  remotely  perhaps,  on  a  feeling  of  fear,  but  nothing 
can  more  strongly  tend  to  obliterate  the  sense  of  shame,  and  to  ren- 
der men's  minds  obtuse  and  callous  to  the  impression  of 
public  opinion,  than  daily  attacks  'upon  character,  dictat-         'ex 
ed  by  party  feeling,  and   promulgated  to  the  world  by  a 
corrupt  and  venal  press.     The  tendency  of  a  system  of  misrepr 
tation,  consisting  of  illiberal  abuse  on  the  one  hand,  and  of  impure 
panegyric  on  the  oilier,  must  be  to  confound  guilt  with  innocence  in 
the  opinion  of  the  world,  to  render  men  equally  deaf  to  the  voice 
of  censure  or  of  praise  ;  and  when  they  were  qo  Longer  deterred 
from  acts  of  political  apostacy  and  violations  of  public  faith  by  a 
principle   of  shame,  it  is  obvious,  that    those   very    motives  of  self- 
interest,  which,  connected  with  the  love  of  character,  constitute  valu- 
able incentives  to  useful,  laudable,  and  honorable  exertion,  would, 
without  such  a  corrective,  tend  to  the  most  selfish  and  unworthy 
actions  ;  all  restraint  founded  in  fear  would  cease,  when  the  honest 

Vol.  I.  7 


ex  PRELIMINARY  DISCOURSE. 

fervor  of   popular  indignation    had    degenerated  into    the  mutual 
hatred  of  contending  factions. 

Next  as  to  limits  of  penal  restraint.  The  limits  of  such  restraint 
must  depend  on  the  nature,  quality,  and  consequences  of  the  com- 
munication ;  2ndly,  on  the  act  of  the  party  who  makes  it,  and  the 
means  of  communication  used  ;  3rdly,  on  his  intention  ;  or,  4thly, 
on  circumstances  collateral  to  the  act. 

First,  then,'  as  to  the  nature,  quality,  and  consequences  of  the 
communication.  As  the  very  object  of  coercion  is  the  prevention  of 
public  mischief  ;  it  is  by  no  means  essential  to  an  offence  of  this  na- 
ture, that  the  criminal  object  of  a  noxious  publication  should  have 
been  actually  accomplished  ;  it  is  sufficient  that  the  communication 
should  directly  and  immediately  tend  to  produce  mischief  to  the 

public. 
[  *cxi  ]  *And  this,  for  several  reasons,  both  because  actual  proof 
of  evil  consequences  to  the  public  would,  from  the  very 
nature  of  the  case,  be  frequently  impossible,  though  highly  presum- 
able ;  and,  2ndly,  because  where  great  mischief  is  to  be  apprehend- 
ed, it  is  far  more  politic  to  interfere  at  an  early  stage,  and  to  arrest 
the  progress  of  the  evil,  that  to  wait  for  its  consummation  ;  and 
3r'dlv,  because,  as  far  as  regards  the  moral  guilt  of  the  offender,  his 
offence  is  completed  by  the  very  act  of  publication. 

Hence,  as  far  as  the  evil  consequences  of  a  publication  are  con- 
cerned, it  is  necessary  that  the  offence  against  the  public  should  be 
defined  and  limited,  not  by  the  effect  actually  produced,  but  by  the 
tendency  of  the  matter  published  to  produce  it.  If,  for  instance,  an 
individual,  with  a  view  to  his  own  private  gain,  were  to  publish  an 
address,  inciting  a  discontented  populace  to  burn  all  stacks  of  corn 
within  a  particular  district,  the  law  of  the  country  would  be  absurd 
and  contemptible,  which  provided  no  punishment  for  so  daring  an 
outrage,  until  proof  could  be  given  that  some  incendiary  had  de- 
stroyed his  neighbor's  property,  in  compliance  with  so  unprincipled 
a  recommendation.  The  very  attempt  to"  excite  to  the  commission 
of  such  outrages  is  in  itself  a  dangerous  violation  of  the  principles 
of  morality  and  natural  justice  :  on  the  question  whether  such  an  at- 
tempt ought  to  meet  with  immediate  reprobation  and  punishment, 
no  conflict  of  opposite  advantages  and  disadvantages  could  possibly 
occur,  it  would  clearly  be  for  the  benefit  of  the  commu- 
[  *cxii  ]  nity,  that  so  atrocious  an  attempt  should  *be  checked  by 
penal  visitation  at  the  very  earliest  opportunity. 

It  is  obvious,  that  it  must  not  only  be  necessary  to  restrain  com- 


PRELIMINARY  DISCOURSE.  cxii 

munications  which  tend  directly  to  a  breach  of  tlie  law,  by  inciting 
others  to  the  actual  commission  of  crimes  prohibited  by  the  law,  but 
also  those  which  tend  to  the  subversion  of  religion,  or,  in  general, 
to  the  destruction  of  the  principles  of  virtue  and  morality,  which 
are  essential  to  good  conduct,  order,  and  decency.  Again,  it  is 
plain,  that  the  degree  of  tendency  cannot  be  material  aa  a  limit  to 
the  offence,  whatever  its  operation  may  be  in  adjusting  the  quantum 
of  punishment.  First,  because  any  tendency  to  produce  public  mis- 
chief, must,  pro  taulo,  be  injurious  to  society  ;  and  secondly,  lie- 
cause  the  extent  to  which  the  mischief  may  be  tolerated,  is  Dot  ca- 
pable of  any  precise  definition. 

Complaints  have  not  unfrequently  been  made,  even  in  this  country 
that  the  law  of  libel  is  too  vague  and  uncertain,  and  that  neither  the 
common  nor  the  statute  law  sufficiently  define  what  constitutes  a 
libel. 

It  may  be  of  use  to  consider  whether  absolute  and  certain  prohi- 
bitions are  not  excluded  by  the  very  nature  of  the  subject  matter, 
and  whether,  if  such  were  imposed,  they  must  not  cither  consist  m 
general  and  peremptory  rules,  which  would  encroach  greatly  on  the 
freedom  of  communication,  or  in  minute  and  specific  ones,  the  partic- 
ularity of  which  would  subject  them  to  the  easiest  evasions.  The 
law  may  either  totally  prohibit  all  discussion  on  a  particular  and 
specific  subject  or  may  go  the  length  of  tolerating  all  that  can  be 
said  or  written  upon  it ;  but  there  is  scarcely  any  ques- 
tion, either  of  "general  or  individual  interest,  in  respect  *cxiii  ] 
of  which  total  prohibition  or  entire  toleration  would  not 
be  prejudicial  to  the  community.  A  total  prohibition  would,  in  most 
cases,  if  not  in  all,  be  inconsistent  with  the  great  principle  of  civil 
liberty,  for  a  penal  restraint,  would  be  imposed  to  a  greater  extent 
than  was  necessary  for  the  welfare  of  society;  on  the  other  hand, 
unrestrained  license  of  communication  would  be  liable  to  the  great" 
est  abuse,  and  open  the  door  to  great  if  not  intolerable  mischief. 

Where  it  is  on  the  one  hand  beneficial  to  society  that  freedom  of 
communication  should  be  tolerated  to  a  great  extent,  but  where,  on 
the  other,  it  would  be  highly  inconvenient  and  mischievous  to  permit 
unbounded  license  to  the  abuse  of  that  liberty,  and  consequently, 
where  a  boundary  is  necessary,  the  establishment  and  preservation 
of  a  proper  limit,  must  always  be  a  work  of  nicety  and  difficulty. 
It  is,  however,  exceedingly  clear,  that  the  line  of  interdiction  cannot 
be  regulated  by  any  prohibition  of  particular  sentiments  or  language. 
Injurious  modes  of  expression  arc  far  too  variable  to  admit  of  any 


cxiii  PRELIMINARY  DISCOURSE. 

precise  rules  or  regulations,  the  laws  which  descend  to  particulars 
on  such  subjects,  and  which  forbid  specific  expressions)  otherwise 
than  by  way  of  example,  are  usually  the  work  of  early  and  inexpe- 
rienced legislators,  and  cannot  possibly  be  of  any  practical  utility, 
subject,  as  they  necessarily  are,  to  the  easiest  evasions.  Such  offen- 
ces, in  truth,  admit  of  effectual  description,  except  in  respect  of  the 
effects  which  they  produce,  or  which  they  immediately  tend  to  'pro- 
duce. Any  attempt  to  enumerate,  with  a  view  to  express,  and  par- 
ticularly prohibit  all  the  offensive  means  by  which  an  ill 
[  *cxiv  ]  disposed  *person  might  attempt  to  destroy  the  public 
sense  of  modesty  and  decency,  would  be  impracticable 
and  absurd ;  if  it  be  necessary  that  such  practices  should  be  re- 
strained by  the  municipal  law,  it  is,  if  not  impossible,  at  least  diffi- 
cult, that  the  offence  should  otherwise  be  described  than  generally 
by  a  prohibition  to  publish  that  which,  being  immodest  and  indecent, 
directly  tends  to  correct  and  vitiate  the  morals  of  the  public.  It 
may  be  objected  that  any  such  general  description  is  uncertain  and 
indefinite.  Be  it  so,  what  then  ?  No  other  inference  seems  to 
result,  than  that  human  laws  do  not  admit  of  perfection,  and  that 
no  general  definition  can  be  framed,  which  shall  be  applicable  to 
acts  capable  of  infinite  variety,  with  absolute  certainty. 

The  publisher  of  a  libel  has  no  more  reason  to  complain  that  the 
law  does  not  precisely  define  what  shall  constitute  a  libel  in  every 
possible  form  which  the  offence  may  assume,  than  a  party  guilty  of 
any  mechanical  and  corporeal  nuisance,  has  a  right  to  object  that 
the  law  does  not  define  what  precise  extent  of  inconvenience  he  may 
inflict  on  others,  without  a  violation  of  the  law. 

A  man  has  a  right  to  exercise  his  trade,  but  he  has  no  right  so  to 
exercise  it  as  to  occasion  mischief  to  the  public  in  the  neighborhood 
of  the  place  where  it  is  carried  on.  To  what  extent  may  he  carry 
it  on  without  offence  against  the  law,  and  without  subjecting  himself 
to  criminal  responsibility  ?  Can  the  law  define  this  otherwise  than 
by  the  general  prohibition  not  to  injure  others ;  and  must  not  every 
man,  at  his  own  peril,  take  care  so  to  conduct  himself  and  his  affairs, 
that  the  public  may  not  be  injured  ?  It  would  be  as  reasonable  for 
one  who  carried  on  an  offensive  trade,  to  complain  that 
[  *cxv  ]  *the  law  had  not  defined  how  many  cubical  feet  of  foul 
and  pestilential  air  emitted  in  a  given  time,  would  consti- 
tute a  nuisance,  as  for  a  libeller  to  object  that  the  law  had  not 
defined  the  precise  quantum  of  noxious  matter,  which  he  should  be 
allowed  to  send  forth  by  the  aid  of  the  press,  before  he  incurred 
any  legal  censure. 


PRELIMINARY  DISCOURSE.  cxv 

When  the  law  says  you  arc  free,  use  your  tongue,  your  pen,  or 
even  the  press,  at  your  discretion;  this  Btate  of  freedom  must  still 
be  subject  to  the  condition,  that  he  who  abuses  his  intellectual  liberty 
and  powers  of  offence  to  the  injury  of  others,  must  be  responsible 
for  that  abuse  in  the  same  manner  as  wheu  he  exerts  his  physical 
strength  for  such  purposes.  Liberty,  divested  of  this  condition, 
would  be  savage,  not  civilized  liberty.  But  under  such  a  condition, 
where  liberty  is  the  general  rule,  abuse  of  that  liberty  the  exception, 
where  so  wide  a  range  of  free  agency  is  permitted,  it  is  for  the 
agent  to  take  care,  at  his  peril,  that  he  use  not  his  liberty  to  the 
injury  of  others,  either  in  their  individual  or  aggregate  capacities. 

Where  the  modes  of  effecting  mischief  arc  of  infinite  variety,  the 
illegality  of  acts  must  usually  be  denned  by  their  actual  conse- 
quences or  immediate  tendency,  rather  than  by  any  detail  of  the 
means  used.  If  a  man  were  to  drive  another  from  his  residence  by 
setting  up  a  pestilential  manufactory  in  the  neighborhood,  it  would 
be  a  strange  defence  to  say,  there  is  no  law  which  prohibits  me 
from  consuming  the  particular  drugs  which  I  used.  The  law  for- 
bids the  use  of  any  in  such  a  manner  as  to  occasion  such  conse- 
quences ;  and  when  the  law  says  that  no  man  shall  be  allowed  to 
degrade  another  from  his  place  in  society  by  deliberate 
and  malicious  *publications,  which  expose  him  as  the  ob-  [  *cxvi  ] 
ject  of  hatred,  contempt,  or  ridicule,  with  what  reason 
can  the  offender  object  that  what  may  render  a  man  odious  or  con- 
temptible, is  not  sufficiently  defined  ?  It  is  by  the  effect  or  imme- 
diate tendency  only  that  such  an  injury  can  be  described  (c). 

In  the  next  place,  is  it  essential  that  the  communication  be  false 
as  well  as  noxious  ? 

The  truth  of  the  imputation  affords  a  decisive  answer  to  an  ac- 
tion for  damages,  for  the  plain  reason,  that  a  guilty  party  has  no 
right  to  a  character  free  from  that  imputation  ;  and  if  he  has  no  right 
to  it,  he  cannot  in  justice  recover  damages  for  the  loss  of  it;  it 
is  damnum  absque  injuria  (a)  ;  but  one  great  object  of  criminal 
animadversion  is  the  preservation  of  public  peace  and  good  order, 
and  those  interests  cannot  be  secured  without  restraining  the  publica- 
tion, at  least  the  deliberate   publication,  in  print  or  by  writing,  of 

(z)  See  the  prohibitory  definitions  of  the  Code  penal  of  France,  supra,  xxxiii.;  of 
the  Laws  of  Athens,  xxxiv. ;  of  Rome  xxxi.:  of  Scotland,  xxxii. ;  of  Spain,  infra, 
cxliv.  of  England,  supra,  xxx.,  infra,  vol.  -,  '-10. 

(a)  Supra,  xli. 

V 


cxvi  PRELIMINARY  DISCOURSE. 

that  which  is. true,  as  well  as  of  that  which  is  false  ;  and  therefore, 
thouo-h  in  principle  the  truth  of  an  imputation  be  a  decisive  answer 
to  an  action  for  damages,  it  is  not  an  answer  to  the  complaint  on  the 
part  of  the  public,  that  the  publication  tends  to  disturb  the  peace  of 

society  (b). 
[  *cxvii  ]  *The  doubts  which  have  been  entertained  on  the  ques- 
tion, whether,  with  a  view  to  penal  consequences,  truth 
may  constitute"  a  libel,  relate  principally,  if  not  exclusively  to  libels 
which  impute  moral  blame  to  individuals,  and  not  to  those  which  do 
not  reflect  upon  any  person  in  particular,  but  which  are  deemed  crim- 
inal, from  their  tendency  to  endanger  the  security  of  society  by  extir- 
pating, or  at  least  weakening,  that  sense  of  religious  and  moral  ob- 
ligation, upon  which  the  happiness  and  well  being  of  society  so  essen- 
tially depend.  To  assert  that  blasphemous,  obscene,  and  criminal 
acts  may  be  freely  described  and  represented,  because  they  are  true 
that  is,  because  such  things  have  been  acted,  would  be  too  absurd 
a  position  to  be  advanced  or  if  advanced,  to  need  refutation. 
[  *cxviii  ]  *Again,  where  an  individual  was  subject  to  any  person- 
al defect  or  misfortune,  or  was  unfortunate  in  any  of  his 
relations,  if  any  one  on  that  account  were  to  expose  him  from  day 
to -day,  and  hold  him  out  as  the  object  of  public  contempt  and  ridi- 
cule, it  could  not  be  doubted  that  the  truth,  as  was  justly  observed 
by  a  celebrated  statesman  (c),  would  rather  be  an  aggravation  than 

(b)  The  law  of  England  supplies  many  analogous  distinctions.  If  A.  has  a  right  to 
a  house,  of  which  B.,  however,  is  in  full  possession,  if  A.  were  to  enter  violently  with 
an  armed  force,  and  B.  were  to  bring  an  action,  he  could  recover  no  damages  ;  for, 
however  improper  the  mode  of  entry  might  be,  yet  it  was  no  injury  to  B.'s  possession, 
for  he  had  no  title  to  it ;  but,  with  respect  to  the  public,  it  would  be  no  defence  to  A. 
on  an  indictment  for  a  breach  of  the  peace,  to  allege  that  he  was  the  owner,  and  that 
B.'s  possession  was  wrongful,  for  it  would  be  no  answer  to  his  having  committed  a  breach 
of  the  peace  ;  and  though  the  real  owner  was  entitled  to  the  possession,  he  was  bound  to 
vindicate  his  right  by  legal  and  peaceable  means.  So  if  one  were  to  beat  or  wound  an 
outlaw,  the  latter  could  not  recover  damages,  yet  the  act  would  be  highly  penal. 

Although  the  rule  that  the  truth  of  a  libel  cannot  afford  a  defence  to  a  criminal 
prosecution,  as  it  may  to  an  action  to  recover  damages,  seems  to  rest  on  clear  and  satis- 
factory grounds,  yet  much  obscurity  and  confusion  has  prevailed  on  the  subject  which 
may  fairly  be  attributed  to  the  doctrines  of  the  civil  law.  The  civil  law  made  no  dis- 
tinction between  the  criminal  and  civil  liability  of  a  libeller.  The  consequence  has 
been  that  even  in  this  country,  where  the  doctrines  of  the  civil  law  have  been  received 
with  a  great  degree  of  jealousy,  it  was  long  before  the  point  was  completely  settled,  that 
the  truth  afforded  a  complete  justification  in  the  case  of  an  action  for  written  slander, 
any  more  than  it  did  in  the  case  of  an  indictment.  See  the  observations  of  Lord  Hard- 
wicke,  in  R.  v.  Roberts,  Sel.  N.  P.  986. 

(c)  Mr.  Fox,  in  the  debate  on  the  Libel  Bill,  vide  supra,  lsv. 


PRELIMINARY  DISCOURSE.  cxviii 

an  excuse,  the  world  being  too  apt  to  consider  men  as  contemptible 
for  their  misfortunes  than  as  odious  for  their  vices. 

Suppose  then,  that  the  alleged  libel  imputes  some  legal  or  moral 
delinquency  to  another,  is  then  the  truth,  the  Veritas  convicii,  as  it 
has  been  termed  by  the  civil  law,  to  be  admitted  as  a  justification  ? 
Now,  previous  to  making  a  few  observations  npon  this  point,  as  a 
mere  question  of  legal  policy,  that  is,  of  general  expediency,  into 
which  it  must  ultimately  be  resolved,  it  may  not  be  improper  briefly 
to  remark  upon  the  ordinary  popular  objection  made  to  the  doctrine 
that  truth  may  be  a  libel.  It  is  seldom  that  the  public  voice  exclaims 
against  a  law  in  the  absence  of  all  reason  for  complaint ;  whenev  r, 
therefore,  that  voice  is  heard,  all  thinking  men  will  listen  to  it  with 
attention,  a  benefit  will  be  attained,  either  by  amendment  of  the 
law,  where  the  complaint  is  well  founded,  or  by  reconciling  men's 
minds,  where  it  can  be  shown  that  the  complaint  is  erroneous,  and 
that  the  law  is  just. 

The   popular  objection  to  the  doctrine  that  truth  may  be  a  libel, 
arises   partly  from  the  want  of  a  full   understanding  of 
the  grounds  and   extent  of  the  rule,  but  *chiefly  and      [  cxix  ] 
principally  from  a  misapplication  of  an  honorable   and 
generous  feeling  in  favor  of  truth. 

The  notion  that  the  publication  of  that  which  is  true  ought  not  to 
be  deemed  criminal,  is  fallacious  iu  a  moral  as  well  as  in  a  legal  point 
of  view ;  it  is,  in  effect,  to  assume  that  the  means  must  sanctify  the 
end,  and  that  a  good  instrument  cannot  be  perverted  to  unworthy 
and  pernicious  purposes.  To  assert  that  the  truth  may  in  all  cases, 
and  under  all  circumstances,  be  published,  is  a  position  as  erroneous 
in  morals  as  in  law;  truth,  as  well  as  falsehood,  may  be  used  as 
the  instrument  of  creating  misery,  and  where  the  object  is  immoral 
the  means  by  which  it  is  attained,  cannot  be  innocent.  If  a  man 
were  suddenly  to  communicate  to  one,  in  a  weak  state  of  health, 
some  very  afflicting  and  distressing  intelligence,  with  intent  that 
the  suddenness  of  the  shock  should  produce  instant  death;  would 
not  the  executed  purpose  amount,  in  foro  conscientice,  to  murder, 
and  would  not  the  plea  be  frivolous  and  absurd,  that  the  fact  was 
true  ? 

If  the  means,  in  a  moral  point  of  view,  be  regarded  as  material, 
the  effect  must  be  to  aggravate  the  offence;  in  consideration  that 
truth  has  been  perverted  and  made  the  instrument  of  perpetrating 
a  crime. 

The  communication  of  the  truth  may  not  unfrequently  constitute 


cxix  PRELIMINARY  DISCOURSE. 

a  most  treacherous  fraud,  criminal  in  point  of  law,  as  well  as  morals  : 
for,  in  some  instances,  it  is  essential  that  the  law,  should  impose  si- 
lence, and  that  even  under  the  obligation  of  an  oath.  In  all  such 
instances,  the  consideration  that  the  truth  is  revealed,  so  far  from 

affording  any  excuse,  constitutes  the  crime. 
[  *cxx  ]  *With  reference  to  one  of  the  principal  grounds  on 

which  the  publication  of  a  defamatory  libel  is  to  be  re- 
garded as  an  offence  against  the  public,  and  without  reference  to  any 
considerations  of  extrinsic  policy,  it  seems  to  be  sufficiently  plain 
that  the  truth  of  the  imputation  ought  not  to  be  admitted  as  a  defence 
inasmuch  as  it  is  quite  consistent  with  the  mischief  intended  to  be 
prevented. 

As  any  direct  solicitation  to  violate  a  law  devised  for  public  secu- 
rity, must  needs  be  an  offence  against  the  law,  every  solicitation  to 
break  the  public  peace  must  in  principle  be  penal.  For  as  no  laws 
can  properly  allow  that  to  be  effected  by  indirect  means,  the  direct 
doing  of  which  is  prohibited,  it  follows,  that  it  would  be  inconsistent 
that  a  law,  which  provided  for  public  security,  should  permit  its  pro- 
visions to  be  in  effect  violated,  by  allowing  the  publication  of  defam- 
atory imputations,  which  tended  immediately  to  disturb  that  secu- 
rity. The  law  therefore,  which  prohibits  such  offences,  does  so  for 
one  reason  at  least,  which  is  wholly  independent  of  the  consideration 
whether  the  imputation  be  in  itself  true  or  false. 

If,  then,  without  reference  to  any  consideration  of  extrinsic  poli- 
cy, but  looking  only  to  the  end  and  object  of  penal  restraint,  the 
truth  of  a  defamatory  communication  ought  not  to  constitute  an  ex- 
ception in  favor  of  the  publisher,  how  stands  the  question  on  grounds 
of  extrinsic  policy  ? 

On  the  one  hand,  to  give  a  general  and  absolute  license  to  pub- 
lish that  which  was  true  concerning  others,  however  defamatory  in 
its  nature  and  injurious  in  its  consequences,  and  without 
[  *cxxi  ]  any  exception  as  to  motive,  *even  though  the  act  were 
done  with  the  illegal  intention  to  provoke  another  to  acts 
of  aggression  and  violence,  would  necessarily  and  unavoidably  occa- 
sion frequent  interruptions  of  the  public  peace,  personal  conflicts, 
broils,  and  bloodshed,  the  natural  issues  of  personal  affronts.  It  is 
also  obvious,  that  if  the  law  were  to  tolerate  the  publication  of  crimi- 
nal charges  by  one  subject  against  another,  under  the  condition  that 
the  accuser,  when  called  on,  should  establish  its  truth  in  a  court  of 
justice,  a  new  and  anomalous  tribunal  would  in  effect  be  enacted  of 
a  dangerous  and  mischievous  description.    Suppose,  that  the  accused 


PRELIMINARY  DISCOURSE.  cxxi 

defers  to  the  jurisdiction,  and  puts  forth  his  answer,  which,  in  moat 
.  would  be  of  a  recriminatory  nature,  who  are  to  be  the  arbiters  '.' 
The  public.  And  what  means  has  this  extraordinary  jury  of  decid- 
ing on  conflicting  statements  ?  what  can  be  the  result  but  mutual  ex- 
asperation, if  not  violence  ?  Let  it  eveD  be  supposed,  that  the  de- 
linquent is  convicted  in  the  judgment  of  the  public,  the  penalty,  no 
doubt,  is  severe — forfeiture  of  character,  but  even  where  such  were 
the  result,  an  evasion  and  default  of  justice  would  be  occasion 
withdrawing  the  cognizance  of  the  crime  from  the  ordinary  legal  tri- 
bunal where  the  offence  would  have  been  punished  according  to  the 
wisdom  of  the  law,  and  loss  of  reputation  would  have  been  a  collat- 
eral but  just  and  certain  consequence. 

It  requires,  however,  little  of  observation  or  argument  to  show 
the  inconvenience  of  permitting  deliberate  charges,  of  specific  crimes 
to  be  made  otherwise  than  according  to  the  ordinary  course  and 
forms  of  justice,  provided  by  the  law  itself.  It  would, 
obviously,  *be  inconsistent  with  the  first  principles  of  legal  [  *cxxii  ] 
policy,  that  criminal  accusations  should  be  thus  made 
before  an  incompetent  and  self-constructed  court,  to  the  neglect  of 
the  legal  and  appropriate  tribunals.  Even  where  such  extrajudicial 
charges  were  true,  the  consequence  would  at  least  be  delayed,  and 
usually  an  utter  evasion  of  justice.  Although  these  observations 
are  not  wholly  applicable,  where  the  defamation  does  not  consist  in 
the  imputation  of  a  crime  cognizable  by  the  law — for  justice,  in 
such  cases,  is  neither  evaded  nor  delayed ;  yet,  as  far  as  regards 
the  hardship  to  the  individual,  or  the  mischief  to  the  public,  the  evil 
may  be  equally  great. 

It  may  be  strongly  urged  that,  to  allow  this  would  be  in  effect  to 
extend  the  criminal  code  indefinitely,  to  make  every  breach  of  moral 
obligation,  every  sin  against  conscience,  a  crime  of  temporal  cogni- 
zance. If  general  license  were  given  for  every  one,  as  he  pleased, 
to  publish  such  delinquencies  with  impunity,  so  as  he  could  after- 
wards prove  them  to  be  true,  it  is  obvious,  that  every  such  justifica- 
tion would  be  equivalent  to  a  judicial  charge,  the  penalty  forfeiture 
of  character,  and  thus  every  defamation,  through  the  medium  of  a 
public  newspaper  or  journal,  might  be  but  preparatory  to  a-formal 
and  judicial  inquiry.  To  tolerate  such  a  proceeding,  would,  ii  is 
plain,  be  highly  mischievous  and  inconvenient.  To  such  an  extent 
as  is  consistent  with  public  good,  it  is  for  the  law  to  define  offences, 
and  to  punish  offenders  ;  but  beyond  this  pale,  must  always  exist  an 
indefinite  multitude  of  offences  against  morality,  which  the  law  does 


exxii  PRELIMINARY  DISCOURSE. 

not  visit,  for  th'e  plain  reason,  that  a  greater  degree  of 
[  *cxxiii  ]  mischief  and  inconvenience  would  result  to  society  from 

interfering  with  such  delinquencies,  than  benefit  from 
attempting  to  prevent  them  by  the  aid  of  penal  censures.  To  allow 
such  a  justification  in  a  criminal  proceeding,  would  be  to  defeat  the 
policy  of  the  law  in  this  respect.  This  argument  may  perhaps  be 
met  with  the  obsevration,  that,  notwithstanding  the  inconvenience 
which  may  result  from  the  investigation  of  mere  moral  delinquencies, 
it  has  already  been  admitted,  that  such  a  justification  ought  to  be 
allowed  as  a  defence  to  the  claim  for  damages  in  a  civil  proceeding. 
The  answer  is,  that  the  cases  are  not  parallel ;  the  admitting  such  a 
justification,  in  the  civil  proceeding,  is  a  matter  of  necessity,  arising 
from  the  very  nature  of  the  claim  to  damages,  and  which  it  would  be 
impossible  to  avoid,  without  violating  the  essential  principle  on  which 
the  civil  remedy  is  founded,  and  allowing  a  delinquent  to  make  a  pro- 
fit of  his  crimes.  In  the  present  instance,  no  such  necessity  or  diffi- 
culty warrants  an  extension  of  the  inconvenience  ;  here  the  aggrieved 
party  who  seeks  redress  is  the  public,  not  the  individual  defamed ; 
and  the  public-is  entitled  to  security,  though  the  charge  be  true,  and 
'though  the  individual  may  have  no  just  title  to  damages. 

In  the  next  place,  it  may  well  be  contended,  that  to  permit  such  a 
justification  as  a  defence  for  publishing  an  extrajudicial  charge  of  a 
specific  crime,  would  frequently  be  attended  with  positive  injustice 
to  the  party  defamed,  and  would  open  a  door  to  great  mischief  and 
oppression. 

How  frequently  must  it  happen  that  the  self-constituted 
[  *cxxiv  ]  public  accuser  knows  the   facts  but  imperfectly,  *and, 

consequently,  how  great  a  temptation  would  the  allowing 
such  a  justification  afford  to  malicious  and  ill  disposed  persons  to 
venture  upon  bold  and  confident  charges,  which,  after  all,  could  not 
be  substantiated.  Again,  absolute  and  positive  injustice  would 
frequently  be  done  in  creating  a  general  and  public  prejudice  on  the 
very  subject  to  be  afterwards  tried,  by  allowing  the  whole  proceed- 
ing to  be,  as  it  were,  prefaced  by  an  ex  parte  and  highly  colored 
representation  of  the  facts  ;  circumstances  might  be  stated  in  sup- 
port of  it,  which  would  .not  bo  legal  evidence  on  the  trial,  but 
which  those  appointed  to  decide,  whose  minds  had  been  previously 
occupied  and  excited  by  an  unfair  representation,  might  not  be  able 
to  dismiss  from  their  consideration  (cZ). 

{d)  And  therefore,  the  admitting  such  a  justification  would  be  wholly  inconsistent 
with  that  wholesome  principle  recognized  by  the  law  of  England,  and  also  of  Scotland, 


PRELIMINARY  DISCOURSE.  cxxiv 

But,  suppose  the  prosecution  to  be  instituted  not  by  the  party  de- 
famed, but  )>y  another,  it  is  plain,  that  the  greatest  injustice  might 
be  done  in  proceeding'  to  an  investigation  of  the  charge  alleged, 
which  so  deeply  involved  his  character  and  reputation,  without  af- 
fording him  the  opportunity  of  defence. 

*If  this  could  be  done,  it  would  be  in  the  power  of  any  [  .  \v  ] 
two  ill  disposed  persons  most  effectually  to  ruin  the  char- 
acter of  a  third,  by  the  intervention  of  legal  process.  And  even,  if 
legal  machinery  could  be  devised  for  the  purpose  of  making  that 
third  person  a  party  to  the  proceeding,  which  absence  or  other  cir- 
cumstances would  frequently  render  impracticable,  it  would  be  a  must 
intolerable  hardship  that  every  man  should  thus  in  effect  be  liable  to 
be  subjected  to  the  expense,  trouble,  and  anxiety  of  a  public  defence 
and  exculpation,  and  that,  not  with  a  view  to  any  legal  and  bene- 
ficial consequence  either  to  the  public  or  to  himself;  for,  if  he  were 
to  be  convicted,  he  could  not  upon  that  conviction  be  punished,  nei- 
ther would  an  acquittal  afterwards  be  available  to  him,  against  a 
charge  duly  made  before  a  competent  tribunal. 

But  if  unlimited  license  to  publish  whatever  was  contumelious  and 
defamatory,  so  as  it  were  true,  would  be  attended  with  mischief  to 
individuals  and  public  disorder,  what,  on  the  other  hand,  would  be 
the  effect  of  a  total  prohibition  to  communicate,  what  was  defamatory, 
whether  true  or  false  ?  It  can  scarcely  be  doubted,  that  if  it  were 
necessary  to  adopt  either  the  one  or  the  other  of  these  extremes,  the 
former  would  be  preferable.  The  resulting  evil  would  be  of  a  more 
limited  extent ;  it  would  leave  individuals  exposed  to  insult,  and  so- 
ciety to  frequent  breaches  of  the  peace;  these,  however,  are  conse- 
quences which  cannot  fairly  be  weighed  against  the  mischiefs  which 
would  arise  from  weakening,  if  not  destroying,  one  of  the  greatest 
moral  securities  by  which  society  are  protected, — the  influence  of 
public  opinion. 

*But  if  the  adoption  of  either  of  these  extremes  would  [  "exxvi  ] 
be  prejudicial,  limits  must  be  sought  for,  which,  though 

(supra,  p.  lxxx.)  which  renders  it  illegal  to  publish  ex  parte  statements  of  criminal 
proceedings,  even  though  they  have  taken  place  before  the  proper  tribunal,  and  upon 
the  ground  of  which  iin>st  important  criminal  trials  in  this  country  have  been  postponed, 
lest  the  parties  accused  should  sutler  from  undue  prejudice.  To  hold  that  the  publica- 
tion of  an  ex  parte  criminal  proceeding  before  B  magistrate  is  illegal,  on  account  of  the 
tendency  of  such  a  practice  to  divert  the  fair  course  "('impartial  juBtice,  and  yet  to  per- 
mit a  mere  unprivileged,  unauthorized  ex  parte  statement,  not  sanctioned  by  a  judicial 
oath,  or  by  any  form  or  color  of  legal  proceeding,  would  be,  to  say  the  least,  highly  in- 
consistent. 


cxxvi  PRELIMINARY  DISCOURSE. 

they  do  not-entirely  exclude  either  of  the  opposite  and  conflicting 
mischiefs,  reduce  the  aggregate  amount. 

One  of  the  most  prominent  of  the  distinctions  devised  for  this  pur- 
pose, is  that  which  is  made  between  mere  oral  communications  and 
such  as  are  written. 

Though  the  distinction  between  oral  and  written  calumny  partake 
of  an  artificial  and  arbitrary  character  ;  yet  is  it  valuable,  because  it 
is  plain  and  intelligible,  and  for  this  reason  has  frequently  been 
adopted,  for  the  purpose  of  defining  the  limits  of  criminal  liability. 

The  restraining  the  criminal  offence  to  written  defamation  is  a 
provision  which,  whilst  it  leaves  the  ordinary  communications  inci- 
dent to  the  daily  business  of  life  unfettered,  at  the  same  timeguards 
against  the  mischiefs  which  would  result  from  unlimited  license,  by 
subjecting  to  punishment  all  such  as  are  guilty  of  the  more  deliber- 
ate, studied,  and  therefore,  more  malicious  attacks  upon  character 
the  more  dangerous  and  injurious,  as  being  more  permanent  in  their 
nature,  and  more  capable  of  a  wide  and  extensive  circulation.  This, 
therefore,  is  a  mode  of  restraint,  which,  whilst  it  leaves  open  con- 
siderable channels  for  communications  affecting  character,  yet  visits 
all  those  attacks  upon  reputation  to  which  the  foregoing  remarks  on 
the  necessity  for  penal  restraint  more  particularly  apply.  To  make 
mere  oral  communications  penal,  whenever  they  reflected  on  the 
characters  of  individuals,  would  be  a  heavy  restraint  on  the  ordi- 
nary intercourse  of  mankind,  and  would  necessarily  and  unavoidably 
occasion  much  and  vexatious  litigation ;  on  the  other 
[  *cxxvii  ]  hand,  the  making  written  and  defamatory  *charges 
penal,  without  regard  to  their  truth  or  falsity,  dimin- 
•  ishes  far  less  than  might  at  first  sight  be  expected,  from  the  great 
securities  for  the  discharge  of  legal  as  well  as  moral  obligations, 
the  love  of  reputation,  and  the  fear  of  public  censure  and  disgrace. 

But,  in  the  next  place,  any  evil  consequence  which  might  other- 
wise result  from  subjecting  written  defamation,  without  regard  to 
its  truth  or  falsity,  to  penal  censures,  is  best  corrected  by  exempting 
largely  from  penal  liability  in  all  cases  where  the  party  acted  with 
a  fair  and  bona  fide  intention,  with  a  view  to  a  recognized  legal  ob- 
ject ;  and  this,  without  regard  to  the  truth  or  falsity  of  the  com- 
munication in  fact ;  for,  in  numerous  instances,  where  the  party  acts 
honestly  in  pursuit  of  a  legitimate  object,  it  is  far  more  consonant 
with  the  principles  of  natural  justice  and  sound  policy  to  make  his 
criminality  depend  on  his  motive,  rather  than  on  the  result  of  an 
investigation  as  to  the  truth  of  the  matter  published.     One  man  may 


PRELIMINARY  DISCOURSE.  cxxvii 

violate  the  principles  of  honor  and  justice,  and  the  dictates  of  his 
own  conscience,  though  he  publish  that  only  which  is  strictly  true; 
whilst  another  may  act  under  the  influence  of  strong  moral  feeling, 
in  publishing  what  he  believes  to  be  true,  but  which  turns  out  event- 
ually to  be  false.  If  the  confidential  depo  itary  of  a  secret  were 
to  betray  his  friend,  from  a  motive  of  malice  and  revenge,  he  would 
undoubtedly  stand  in  the  first  predicament ;  were  a  man,  under  a 
bona  fide  belief  that  another  had  committed  a  fraud  to  warn  a  friend, 
in  confidence,  against  trusting  that  other,  stating  his  reason,  it 
would,  provided  he  acted  with  reasonable  caution,  be  contrary  to 
natural  justice  and  the  ordinary  principles  of  criminal 
jurisprudence,  that  he  should  be  'dealt  with  as  a  crimi-  [  "exxviii  ] 
nal,  merely  because  he  happened  to  be  mistaken.  The 
consideration,  however,  of  the  circumstances,  which  ought,  when 
united  with  an  honest  intention  to  protect  the  party  against  crimi- 
nal censures,  belongs  to  another  place ;  it  is  noticed  here,  merely 
for  the  purpose  of  showing  that  the  punishment  of  written  defama- 
tion, notwithstanding  its  truth,  is  capable  of  such  modifications  as 
may,  to  a  great  extent,  secure  the  public  from  any  injury  which  could 
arise  from  impeding  those  ordinary  communications  affecting  reputa- 
tion, which  are  of  such  great  importance  to  society. 

Another  material  consideration  connected  with  the  present  sub- 
ject, is,  whether  the  truth  of  the  defamatory  imputation  should  not 
be  allowed  to  be  shown  in  mitigation  of  punishment,  although  una- 
vailable as  a  complete  defence,  inasmuch  as  it  is  offensive  to  men's 
sense  of  natural  justice,  that  one  who  published  that  only  which  was 
true,  should  undergo  the  same  measure  of  punishment  as  if  he  had 
in  addition  basely  invented  the  slander.  If,  however,  the  party  re- 
flected on  were  not  the  prosecutor,  it  would  he  hard  upon  him  to 
make  his  conduct  the  subject  of  public  inquiry,  where  he  had  no 
means  of  defending  himself  by  becoming  a  party  to  the  inquiry  :  and 
even  supposing  tli.it  he  were  the  prosecutor,  ami  hail  an  opportunity 
of  meeting  the  charge,  it  would  be  highly  inconvenient  (<h,  that  the 
guilt  or  innocence  of  the  prosecutor,  should  thus  lie  brought  into 
question  in  such  a  collateral  investigation,  the  more  especially  where 
he  Was  charged  with  having  committed  an  offence  of 
which  the  ordinary  criminal  tribunals  have 'cognizance.  [  *cxxix  ] 
It  remains,  however,  to  he  emphatically  observed,  that 
if  the  defendant,  in  such  a  case,  is  not  to  be  admitted  to  show  that 

(ii)  Supra,  p.  exxii. 

Vol.  I.  8 


cxxix  PRELIMINARY  DISCOURSE. 

what  he  published  was  true,  it  follows,  as  a  strict  and  necessary- 
consequence,  that  no  greater  punishment  ought  to  be  inflicted  upon 
him,  than  would  have  been,  had  he  been  permitted  to  prove  and  had 
actually  proved  that  the  fact  was  true ;  for  the  truth  is  in  principle 
excluded,  because  it  is  merely  collateral  and  immaterial  to  the  na- 
ture and  extent  of  the  offence :  and  if  immaterial,  no  greater  pun- 
ishment ought  to  follow,  than  if  the  fact  were  true ;  it  would  obvi- 
ously be  unjust,  first,  to  exclude  a  party  from  proof  that  what  he 
published  was  true,  and  then  to  punish  him  with  a  greater  degree  of 
severity,  as  for  publishing  what  was  false,  or  at  least  not  established 
as  true. 

2nd.  Next,  as  to  the  act  of  the  party,  and  the  means  of  com- 
munication used. 

In  the  civil  proceeding  to  recover  a  compensation  in  damages,  a 
publication  of  the  slander  is  absolutely  essential  ;  without  it,  no 
damage  can  have  been  sustained  in  fact,  and  none  can  in  principle 
be  presumed.  In  respect  of  criminal  animadversion,  the  case  is 
different  ;  it  is  a  mere  question  of  policy  and  expediency,  whether 
the  law  shall  interfere  to  prohibit,  and  in  consequence  to  punish  any 
act  or  dealing,  in  respect  of  a  libel,  anterior  to  an  actual  publica- 
tion. 

The  first  step  is  to  conceive  the  mischievous  and  illegal  matter 
of  the  libel,  then  to  commit  it  to  writing  or  print  ;  it  is  by  the  act 
of  publication   that  the  offender,  abandoning   his  locus  pcenitenlics, 
absolutely  and  conclusively  inflicts  the  injury  on  society. 
*cxxx  ]     *That  the  actual  publication  of  that  which  is  fraught 
with  danger  and  mischief  to  society,  is  to  be  regarded 
as  penal,  seems  to  be  as  clear  a  proposition,  as  it  is,  on  the  other 
hand,  that  the  mere  abstract  intention  to  do  mischief,  unaccompa- 
nied by  any  act,  ought  not  to  be  subjected  to  penal  visitation  (e)  ; 
whether  the  intermediate  acts  of  writing  or  printing  a  libel,  with  in- 
tent to  publish,  ought  also  be   deemed   criminal,  is  at  least  a  fair 
question  of  legal  policy.     That  such  an  act  might  properly  be  made 

(e)  A  man's  secret  intentions,  and  even  actions,  are  rather  the  subject  of  moral  than 
of  legal  restraint,  and  they  do  not  properly  become  the  subject  of  penal  visitation,, until 
the  necessity  for  coercion  has-been  manifested  by  some  overt  act,  tending  to  the  prejudice 
of  society. 

Marsyas  dreamt  that  he  had  cut  Dyonysius's  throat  ;  Dyonysius  put  him  to  death, 
pretending  that  he  would  never  have  dreamt  of  such  a  thing  by  night,  if  he  had  not 
thought  of  it  by  day.  This  (says  M.  Montesquieu,  b.  11,  c.  12.)  was  a  most  tyrannical 
action,  for  though  it  had  been  the  subject  of  his  thoughts,  yet  he  had  made  no  attempt 
towards  it.     The  laws  do  not  take  upon  them  to  punish  any  other  than  overt  acts. 


PRELIMINARY  DISCOURH..  cxxx 

penal,  provided  such  a  law  were,  on  the  whole,  beneficial,  seems  to 
be  manifest,  for  acts  of  forgery  are  usually  considered  to  be  consum- 
mated crimes  of  great  magnitude,  although  they  be  done  in  secret, 
and  without  subsequent  voluntary  publication.  It  is,  however,  to 
be  apprehended,  that  to  punish  with  Btrictness  and  effect,  the  m 
writing  or  printing  of  a  libel,  would  be  attended  with  more  of  mis- 
chief than  of  benefit  to  the  community.  Unless  means  were  devised 
for  subjecting  men's  private  closets  to  rigorous  examination,  founded 
on  mere  suspicion,  such  a  law  would  be  nugatory  :  it  would  rarely 
indeed  be  known  that  a  man  had  composed  and  written  a 
libel,  unless  he  had  himself  *in  some  way  published  or  [  'exxxi  ] 
divulged  it.  and  where  that  was  the  case,  the  law  would 
cease  to  be  necessary.  On  the  other  hand,  the  hardship  and  inse- 
curity which  would  result  to  society  from  subjecting  their  private 
muniments  and  writings  to  examination  by  police  officers,  would  be 
a  public  inconvenience  of  the  most  intolerable  description.  And 
though  no  such  power  should  be  given  to  search  on  mere  suspicion, 
yet  would  it  frequently  happen  that  the  inferior  ministers  of  the  law 
would  be  ready,  on  many  occasions,  to  run  the  risk  of  consequences 
in  the  expectation  of  detecting  cause  for  accusation  against  suspect- 
ed or  obnoxious  persons. 

In  the  next  place,  do  any  limitations  arise  from  the  means  of 
communications  used  ?  If  penal  restraint  were  to  be  made  strictly 
commensurate  with  the  evil  which  calls  for  restraint,  there  would 
be  no  more  reason  for  making  penal  responsibility  than  for  making 
civil  liability,  to  depend  on  the  mere  means  of  communication.  For, 
it  is  plain,  that  the  mode  of  communication  cannot  alter  the  vicious 
and  mischievous  nature  of  the  matter  communicated,  though  it  may 
considerably  affect  the  extent -and  duration  of  the  mischief. 

If  a  written  incitement  to  an  evil  act  tend  to  produce  mischief  to 
the  public,  so  also  must  an  oral  one  ;  and,  therefore,  if  the  former 
is  on  that  account  to  be  deemed  criminal, so  ought  the  latter.  The 
two  modes  may  indeed  differ  as  to  the  extent  of  the  mischief  likely 
to  be  occasioned  ;  the  former  is  capable  of  being  widely  circulated, 
and  for  a  length  of  time  ;  the  effect  of  the  latter  is  likely  to  he  more 
local  and  more  transitory  ;  this,  however,  is  bul  casual  and  contin- 
gent ;  an  inflammatory  and  seditious  speech,  addressed 
to  a  multitude  on  an  'occasion  of  great  excitement,  may  [  'exxxii  ] 
produce  effects  far  more  mischievous  and  lasting  than  if 
the  same  speech  were  written  or  printed,  and  communicated  to  but 
a  few.  Contumelious  and  insulting  expressions  applied  to  a  party 
in  his  presence  and  before  a  large  assembly  may  be  infinitely  more 


cxxxii  PRELIMINARY  DISCOURSE. 

injurious  and  provocative  than  if  the  same  had  been  written  and 
sent  to  him.  At  all  events  the  difference  of  mode  cannot,  in  point 
of  principle,  alter  the  criminal  quality  of  the  act,  but  merely  affords 
room  for  a  distinction  in  admeasuring  the  punishment. 

When,  however,  considerations  of  extrinsic  policy  are  taken  into 
the  account,  and  allowed  to  operate  in  restraint  of  criminal  liability, 
it  is  obvious  that  a  distinction,  founded  on  the  mode  of  publication, 
including,  within  its  scope,  such  modes  as  by  their  capability  and 
facility  of  diffusion,  and  permanency,  must  ordinarily  be  considered 
as  the  more  dangerous,  as  by  printing  or  writing,  and  excluding 
such  as  are  merely  oral,  may  well  consist  with  general  convenience. 
Some  observations  have  already  been  made,  with- a  view  to  show 
that,  as  far  as  the  civil  remedy  is  concerned,  there  is  no  sound  dis- 
tinction between  oral  and  written  slander  ;  in  reference,  however,  to 
penal  censures,  there  are  several  reasons  for  confining  the  penalties 
in  respect  of  personal  defamation  to  written  publications.  Iu  the 
first  place,  to  extend  the  offence  to  oral  defamation  generally,  would 
be  inconvenient,  because  it  would  give  rise  to  many  vexatious  pros- 
ecutions, and  would  create  far  too  large  a  restraint  on  communica- 
tions involving  character.     In  the  next  place,  the  proof  of  an  offence 

committed  by  the  writing  and  publishing  of  illegal  mat- 
[  *cxxxiii  ]    ter  is  far  more  definite  and  satisfactory  *than  where 

the  offence  is  merely  oral,  when  so  much  depends  on 
tone  and  manner,  the  situation  of  the  speaker,  the  circumstances  un- 
der which  he  spoke,  the  understanding  and  memory  of  the  hearers. 
On  this  account  it  is  that  the  municipal  laws  of  different  countries  so 
frequently  found  a  distinction  between  what  is  written  and  that  which 
is  merely  spoken  (/). 

This  relaxation,  however,  founded,  as  it  is,  on  a  principle  of  con- 
venience, cannot  properly  be  extended  beyond  those  communications 
which  usually  occur  in  the  ordinary  intercourse  of  society,  in  which 
the  character  and  reputation  of  particular  members  of  that  society 
must  necessarily  and  frequently  be  involved.  It  would  be  highly 
inconvenient  that  men's  tongues  should  be  fettered  on  such  occa- 
sions, by  the  perpetual  apprehension  of  criminal  prosecutions.  It  is 
plain,  that  no  direct  solicitation  to  violate  the  law  can  by  possibility 
fall  within  any  principle  of  expediency,  so  as  to  derive  protection 
from  it. 

(/)  See  Montesquieu's  Spirit  of  Laws,  b.  12,  c.  12.  Hence  it  is,  that,  according  to 
the  law  of  England,  mere  words  spoken  do  not  constitute  an  overt  act  of  treason,  infra, 
vol.  2,  p.  1G7. 


PRELIMINARY  DISCOURSE.  cxxxiii 

The  law  of  England  has  not  only  made  a  distinction  in  respect  of 
the  means  of  communication,  but  lias  also  adopted  the  word  libel  as 
a  particular  and  technical  term,  by  which  communications  of 
an  immoral  or  illegal  tendency,  made  by  means  of  writings, 
pictures,  or  signs,  are  distinguished  from  those  which  arc  merely 
oral  (#). 

*Tliis  distinction  and  the    grounds  of  it,  will  more  [  "exxxiv  ] 
properly  be  adverted  to  hereafter,  when  the  provisions 
of  the  law  of  England  on  the  subject  are  discussed. 

3rdly.  It  is  next  to  be  considered  how  far  the  motive  of  the  par- 
ty, and  the  occasion,  of  the  publication  are  material,  either  to  con- 
stitute or  repel  the  conclusion  of  guilt,  where  a  publication  has  been 
effected  of  noxious  and  illegal  tendency. 

It  seems,  on  the  other  hand,  that  a  mere  wicked  and  mischievous 
intention,  unless  it  be  conjoined  with   some  publication  of  noxious 
and  illegal  matter,  cannot  constitute  an  offence  against  mere  muni- 
cipal laws  :   in  other  words,  that  mere  abstract  intention  is  not  pun 
ishable  by  a  human  tribunal.     If  a  man,  intending  to  publish  a  most 
atrocious  libel,  were  by  mistake  to  deliver  the  gospel  instead  of  the 
book  in  which  the  libel  was  contained,  though  in  moral  point  of  view, 
his  guilt  would  be  just  the  same  as  if  he  had  published  the  libel,  yet 
he  would  have  committed  no  crime  against  the  law,  unless  that  law 
took  cognizance  of  mere  abstract  intention,  linacompanied  by  any 
definite  criminal  act.     On  the  other  hand,  it  appears  to  be  equally 
manifest,  that  where  any  act  is  by  the  law  defined  to  be  illegal  and 
criminal,  every  one  is  punishable  who  voluntarily  does 
the  prohibited  act,  without  some  legal  justification  *or    [  *cxxxv 
excuse,  furnished  by  the  occasion  and  circumstances, 
and  without  regard  to  his  real  motive  and  intention.     To  hold  that 
a  man  should  be  absolved  from  penal  responsibility,  merely  because 
his  motives  were  kind,  benevolent,  and  philanthropic,  would  be  to 
set  the  private  opinion  and  conscience  of  every  one  above  the  law  to 
the  utter  subversion  of  the  law. 

For  the  same  reason,  it  is  obvious,  that  mere  abstract  intention 
and  motive,  where  the  act  is  voluntary,  cannot,  without  reference  to 

(g-)  4  Comra.  150.  This  definition,  though  perhaps  sufficiently  proximate  fur  all 
practical  ami  useful  purposes,  does  not  precisely  agree  with  the  ordinary  sense  and 
meaning  of  the  word,  for  it  would  include  an  express  written  solicitation  to  commit  a 
crime,  which  does  not,  perhaps,  in  strictness,  fall  within  the  ordinary  notion  of  a  libel  ; 
yet,  inasmuch  as  the  very  essence  of  a  libel  consists  in  its  tendency  to  produce  some 
public  or  private  mischief,  such  a  solicitation  conveyed  in  writing,  seems  properly  to 
fall  within  the  meaning  of  the  term. 

8* 


cxxxv  PRELIMINARY  DISCOURSE. 

the    occasion  and  circumstances  of  the  communication,  constitute 
any  justification  or  excuse  which  the  law  can  safely  recognize. 

The  intention  of  the  publisher,  in  reference  to  criminal,  as  well 
as  civil  liability,  is  capable  of  a  threefold  distinction ;  he  may,  in 
the  first  place,  be  actuated  by  a  malicious  and  malignant  intention 
to  effect  the  particular  mischief  to  which  the  means  he  uses  tend  ; 
or,  on  the  other  hand,  his  object  may  be  benevolent  and  laudable  ; 
or,  lastly,  he  may  be  indifferent  as  to  consequences,  and  act  purely 
from  some  collateral  motive.  But  mere  intention  in  the  abstract, 
and  without  reference  to  circumstances  which  supply  a  justification, 
recognized  by  the  law,  cannot  supply  a  test  of  exemption  from  crim- 
inal, any  more  than  from  civil  'liability. 

A  man  must,  in  respect  of  criminal,  as  well  as  remedial  conse- 
quences, be  presumed  to  contemplate  and  intend  the  natural  conse- 
quences of  his  own  act ;  if,  therefore,  the  act  be  calculated  for  the 
production  of  evil  consequences,  he  must  be  taken  to  have  intended 
them  ;   or  it  may,  with  greater  simplicity,  be  stated,  that  the  wilful 
doing  of  any  prohibited  act,  tending  to  public  injury,  is,  in  the  ab- 
.   sence  of  any  lawful  excuse,  in  itself  criminal,  legal 
*cxxxvi  ]     *malice  being  in  all  such  cases,  a  mere  formal  infer- 
ence of  law. 
And  it  seems  to  be  clear  in  principle,  that  mere  innocency  of 
intention,  so  long  as  the  act  is  voluntary  and  designed,  in  the  ab- 
sence of  circumstances  which  amount  to  a  legal  excuse,  cannot  ex- 
empt the  party  even  from  criminal  liability.     Every  man  must  be 
taken  to  know  the  law  ;  to  hold  the  contrary,  would  be  to  confer  a 
premium  on  ignorance,  which  would  afford  a  defence  for  every  pos- 
sible transgression  of  the  law  (//). 

4thly.  In  the  next  place,  in  reference  to  the  criminal,  as  well  as 
the  civil  branch  of  the  subject,  the  occasion  and  circumstances  of 
the  communication  may  furnish  either  an  absolute  and  peremptory 
bar  to  criminal  responsibility,  or  a  qualified  one  dependent  on  the 
particular  motive  and  intention  with  which  the  party  was  actuated 
in  making  such  communication. 

In  the  first  place,  it  is  in  some  instances  a  matter  of  public  policy, 
arising  from  the  occasion  of  making  the  communication,  wholly  to 
exempt  the  party  from  all  penal  consequences,  at  least  from  the 

(h)  Ignorance  of  the  law  excuses  no  man;  not  that  all  men  know  the  law,  but  be- 
cause it  is  an  excuse  every  man  will  make,  and  no  man  can  tell  how  to  confute  him. — 
Selden. 


PRELIMINARY  DISCOURSE.  cxxxvi 

ordinary  penalties  annexed  to  defamatory  communications.  The 
same  principle  of  expediency,  which  operates  to  the  exemption  of  a 
legislator,  judge,  or  witness,  from  actions  for  slander,  applies  to  the 
question  of  exemption  from  penal  liability. 

Thus,  if  in  the  course  of  a  legal  investigation,  a  wit- 
ness should  make  a  deposition  greatly  injurious  to  'the  [  'exxxvii  ] 
character  of  another,  and  which  would,  if  published  un- 
der other  circumstances,  be  criminal,  yet  it  would,  obviously  be  im- 
politic and  inconvenient  to  permit  a  penal  prosecution  to  be  main- 
tained against  the  witness,  in  respect  of  his  deposition,  founded  on 
a  mere  suggestion,  that  his  intention  was  malicious;  for  it  would 
necessarily  be  a  great  hindrance  to  such  inquiries,  if  the  motives  of 
witnesses  could  be  afterwards  brought  in  question.       Though  his 
motive  in  becoming  a  witness  might  be  most  malicious  and  immoral, 
his  testimony  might  be  true  and  essential  to  the  purposes  of  justice. 
Corruption  on  the  part  of  a  judge,  or  perjury  on  that  of  a  witness, 
must  necessarily  be  crimes  of  great  magnitude  under  every  sy>tem 
of  laws  ;  these,  however,  are  very  distinct  and  different  offences,  and 
are  not  connected  with  the  present  subject. 

In  the  next  place,  the  occasion  and  circumstances  of  the  com- 
munication may  supply  a  qualified  defence,  dependent  on  the  ac- 
tual intention  to  injure.  The  constituting  a  large  and  extensive 
barrier,  for  the  legal  protection  and  immunity  of  those  who  act 
bona  fide  and  sincerely,  according  to  the  occasion  and  circumstan- 
ces in  which  they  are  placed,  is  not  only  just,  in  a  moral  point  of 
view,  and  advisable  as  a  measure  of  policy,  but  is  absolutely  neces- 
sary for  the  purposes  of  civil  society.  Were  the  mere  probable 
effect  and  tendency  of  a  publication  to  be  the  criterion  of  guilt, 
without  reference  to  the  real  motive  of  the  author  and  the  occasion 
and  circumstances  under  which  he  acted,  the  rule  would  be  far  too 
extensive  for  the  convenience  of  mankind,  and  the  evil  resulting 
from  the  prohibition  would  greatly  out-weigh  the  opposite  advan- 
tages to  be  derived  from  it. 

*It  is  indeed  very  possible  that  a  party,  actuated  by  [  'exxxviii  ] 
the  very  best  intentions,  may  propagate  erroneous  no- 
tions, but  so  long  as  he  urges  those  opinions  hmm  fide,  believing  them 
them  to  be  just,  and  intending  to  do  good,  his  errors  are  not  likely 
to  prevail  against  the  better  sense  and  judgment  of  mankind  to  a 
very  serious  and  prejudicial  extent;  and  the  contingent  and  casual 
publication  of  erroneous  opinions  cannot  be  placed  in  competition 
with  the  splendid  advantages  which  flow  from  permitting  full  and 


cxxxviii  PRELIMINARY  DISCOURSE. 

fair  discussion  on  every  subject  of  interest  to  mankind,  as  connected 
with  religion,  politics,  philosophy,  and  morals. 

The  security  of  the  public,  in  this  respect,  is  amply  provided  for 
by  distinguishing  between  that  which  is  published,  with  a  sincere 
and  honest,  though  unsuccessful  intention  to  do  right,  and  malicious 
attempts  to  injure  society  in  general,  or  individuals  in  particular, 
by  profane,  blasphemous,  seditious,  immodest,  or  defamatory  com- 
munications. 

This  general  principle  embraces  not  only  all  communications 
made  on  subjects  of  public  interest,  but  also  those  which  affect  the 
characters  of  private  persons,  provided  they  be  made  in  the  discharge 
of  any  legal,  or  even  moral  duty,  and  in  a  manner  suited  to  the 
occasion.  Here  the  boundaries  of  criminal  as  well  as  civil  liability 
seem  to  be  identical. 

In  all  such  cases,  though  the  tendency  may  be  of  an  injurious 
nature,  it  is  a  question  whether  the  party  was  really  actuated  by  a 
good  and  honest  intention,  as  suggested  by  the  occasion  and  cir- 
cumstances under  which  he  published,  or  whether  he  made  use  of 
-that  occasion  as  a  cloak  for  carrying  an  injurious  and 
[  *cxxxix  ]  malicious  *desigti  into  effect.  The  real  intention  of  the 
party  is  the  proper  test  of  criminality,  and  legal  is 
commensurate  with  moral  delinquency. 

Here  a  question  of  considerable  importance  occurs  :  though  the 
truth  of  a  slanderous  charge  may  be  no  justification,  yet  in  those  in- 
stances where  malice  in  fact  is  the  test  of  criminality  where  the 
question  is,  whether  the  publisher  acted  sincerely,  or  merely  mali- 
ciously, and  not  with  reference  to  the  occasion,  ought  it  not  to  be  ad- 
mitted, at  all  events,  as  collateral  evidence  to  shew  the  true  state  of 
his  mind  ?  Thus,  suppose  that  A.  writes  a  letter  to  B.,  stating  the 
latter  to  have  been  guilty  of  disgraceful  conduct,  and  that  the  de- 
fence is,  that  the  letter  was  written  for  the  purpose  of  admonition 
and  advice,  not  with  a  view  to  injure  or  offend  B.,  but  in  order  to 
amend  and  reclaim  him.  In  such  a  case,  the  question  would  be,  as 
to  the  sincerity  of  A. ;  if  he  were  sincere,  it  would  be  contrary  to 
sound  policy  and  natural  justice  to  punish  him  as  a  criminal ;  if  he 
assumed  the  mask  of  friendship,  in  order  that  he  might  wound  with 
impunity,  he  would  deserve,  for  his  hypocrisy,  a  higher  degree  of 
punishment.  Now,  as  the  issue  would,  in  such  a  case,  be  on  the 
mere  fact  of  sincerity,  it  is  manifest,  that  if  the  prosecutor  could 
show  that  the  imputation  was  false  in  fact,  and  that  A.  knew  it  to  be 
false,  this  would  at  once  be  decisive  to  show  that  he  did  not  act  bona 


PRELIMINARY  DISCOURSE.  cxxxix 

fide  ;  and  although ,  on  the  other  hand,  proof  that  the  facts  were  true, 
or  that  A.  believed  them  to  be  true  would  not  be  absolutely  decisive 
as  to  his  sincerity  of  intention,  yet  still  there  can  be  no  doubt  as  to 
the  materiality  of  such  evidence. 

*In  such  cases,  one  of  three  courses  must  necessarily  [  *cxl  J 
be  adopted,  cither,  first,  to  assume  the  falsity  of  the  im- 
putation ;  or,  secondly,  to  assume  its  truths  (or  at  least  not  to  assume 
its  falsity  ;)  or,  thirdly,  to  admit  evidence  of  the  fact.  The  first  of 
these  must  at  once  be  rejected,  so  inconsistent  would  it  be  with  rea- 
son and  natural  justice,  to  subject  any  one  to  punishment  on  the  as- 
sumption of  a  fact,  without  permitting  him  to  disprove  it.  Each  of 
the  other  alternatives  would  be  attended  with  its  peculiar  difficulties  : 
it  would  be  highly  inconvenient  to  try  a  collateral  charge  against  the 
prosecutor,  or  it  may  be  a  stranger,  far  more  heinous,  than  the  prin- 
cipal one  against  the  defendant.  On  the  other  hand,  were  the  truth 
to  be  presumed,  or  at  least  the  falsity  not  assumed,  a  malicious  libel- 
ler might  be  acquitted,  of  whose  malice  the  most  decisive  proof  might 
have  been  adduced.  The  latter,  however,  would  probably  be  the 
less  inconvenient  consequence  of  the  two,  for  many  of  the  most  weigh- 
ty objections  against  admitting  the  truth  of  a  personal  and  defama- 
tory charge  to  afford  ground  of  justification  or  excuse,  would  also 
apply  to  the  exclusion  of  proof  of  the  fact  as  collateral  evidence. 
It  is  also  to  be  recollected,  that,  after  all,  the  truth  or  falsity  of  the 
charge  would  not  be  the  real  question,  and  would  be  material,  so  far 
only  as  it  tended  to  show  the  real  intention  of  the  party  who  made  it  ; 
and,  therefore,  even  admitting  the  fact  to  be  true,  still  the  prosecutor 
would  1)0  at  liberty  to  show  that  the  defendant  did  not  act  on  any 
belief  of  the  truth,  or  even  if  he  did,  that  he  was  actuated  by  a  ma- 
licious intention  to  injure  or  offend,  and  not  with  a  fair  and  honest 
intention  to  effect  a  beneficial  object  ;  and  on  the  other 
hand,  the  defendant  *would  be  at  liberty,  even  though  he  e\li  ] 

admitted  the  imputation  to  be  false,  to  show  that  he  be- 
lieved it  to  be  true,  and  that  he  acted  on  that  supposition  with  a 
bona  fide  intention  (i). 

(i)  The  law  of  England,  it  will  be  seen,  on  the  trial  of  an  information  or  indictment 

for  publishing  a  defamatory  libel  reflecting  on  an   individual,  excludes  evidence"  of  the 

truth  of  the  contents,  though  it  be   offered  merely  with  a  view  to  prove  or  disprove  the 

malice  of  the  publisher. 
It  has  been  strongly  urged,  (see  the  Edinburgh   Review,  for  the  year  1816,)  that  is 

thus  rejecting  evidence  of  the  truth,  injustice  is  done:  and  it  must  be  admitted  at  once 
that  to  exclude  such  proof,  aud,  at  the  Bame  time,  to  raise  any  presumption  that  the 
charge  was  false,  because  it  had  not  beeu  proved  to  be  true,  would  be  productive  of  gross 


cxli  PRELIMINARY  DISCOURSE. 

*cxlii  ]      -  *The  degree  of  punishment  to  be  inflicted,  in  respect 
"  *cxliii  ]     of  a  noxious  and  illegal  communication  must  "necessarily 

injustice  to  a  defendant  in  such  a  prosecution.  On  the  other  hand,  although  to  exclude 
proof  that  the  charge  was  false,  and,  which  is  still  more  material,  that  the  defendant 
knew  it  to  be  false,  would  be  to  exclude  the  most  cogent  evidence  of  malice,  the  conse- 
quence would  be  less  repugnant  to  men's  sense  of  natural  justice,  inasmuch  as  it  is 
preferable  to  err  on  the  side  of  mercy,  especially  as  the  defect  might  frequently  be  sup- 
plied by  other  evidence,  so  seldom  does  it  happen  that  the  same  malicious  feeling,  which 
is  strong  enough  to  cause  a  party  to  invent  a  deliberate  fiction,  does  not  also  betray  itself 
by  collateral  indications.  The  effect  of  such  an  exclusion  is  also  diminished  by  the  con- 
sideration that  the  objection  is  applicable  only  to  that  intermediate,  though  large  class 
of  cases,  where  actual  malice  is  the  proper  test  of  guilt;  and  that  against  the  inconve- 
nience which  no  doubt  must  result. from  excluding  such  evidence  in  this  class  of  cases, 
are  to  be  set  off  those  opposite  inconveniences,  already  adverted  to,  which  would  arise 
from  the  admitting  such  evidence;  the  necessity  for  inquiring  into  the  most  serious  and 
complicated  criminal  charges  in  a  collateral  proceeding  of  far  less  importance;  the  con- 
stituting a  tribunal  for  indirectly  trying  moral  offences,  of  which  the  law  itself  takes  no 
cognizance;  the  danger  to  be  apprehended  to  the  public  peace  from  permitting  insults 
to  be  offered  where  the  truth  can  be  proved,  without  restraint,  and  thus  driving  men  to 
avenge  such  insults  by  violence;  and  last,  but  not  least,  the  hardship  which  would  be 
occasioned  to  individuals  in  permitting  tbeir  conduct  and  reputation  to  be  put  in  haz- 
ard, it  may  be  collusively,  by  proceedings  to  which  they  are  not  parties.  It  has  been 
urged  that  the  same  kind  of  hardship  may  arise  on  a  justification  in  a  civil  action:  but 
there,  from  the  nature  of  the  case,  the  danger  is  much  limited  by  the  consideration  that 
the  plaintiff  cannot  collusively  implicate  the  character  of  a  third  person  Without  injuring 
his  own.  If  A.  were  to  publish  that  B.  had  been  guilty  of  adultery  with  the  wife  of  C, 
and  on  an  action  for  damages  brought  by  C.  and  his  wife,  A.  were  to  justify,  alleging 
that  the  fact  was  true,  the  character  of  B.  would  no  doubt  be  implicated  in  the  result, 
though  he  had  no  means  of  becoming  a  party  to  the  proceeding;  but  in  such  a  case  there 
would  be  little  probability  of  collusion  between  A.  and  the  husband  for  the  purpose  of 
defaming  B  ,  when  it  is  considered  that  the  object  could  not  be  accomplished  except  by 
means  of  a  verdict  which  recorded  the  dishonor  of  C.  and  the  infamy  of  his  wife.  In 
the  civil  proceeding,  therefore,  little  of  abuse  or  inconvenience  can  arise  from  an  impli- 
cation of  a  third  person  in  a  justification  of  this  nature,  whilst  in  a  prosecution  to  be 
instituted  by  a  stranger,  no  such  restraint  on  the  abuse  would  operate. 

It  is  true  that,  as  the  law  now  stands,  the  defamed  or  injured  party  is  usually  the 
prosecutor,  but  it  by  no  means  follows  that  prosecutions  would  be  so  limited  if  such  a 
justification  were  to  be  permitted,  and  a  recent  instance  (R.  v.  Burdett,  4  B.  and  A. 
314,)  is  sufficient  to  show  that  characters  of  third  persons  may  be  deeply  implicated  in 
prosecutions  to  which  they  are  strangers. 

It  has  further  been  urged  that,  in  the  criminal  proceeding,  the  real  object  of  legal 
interference  is  the  protection  of  the  defamed  party,  and  that  the  injury  to  the  public  is 
but  a  legal  fiction.  Now  that  one  main  ground  of  penal  infliction  in  such  cases  recog- 
nized by  the  law  of  England,  is  the  protection  of  individuals,  may  readily  be  admitted, 
but  this  is  not  the  only  one;  another  and  equally  important  object,  as  may  be  collected 
from  the  language  and  decisions  of  the  courts,  is  the  preservation  of  the  public  peace, 
and  this  may  clearly  be  inferred  from  the  consideration  that  a  publication  of  a  libel  is 
penal,  though  it  be  strictly  confined  to  the  party  defamed;  this  would  be  unnecessary  if 
the  law  regarded  merely  the  injured  credit  of  the  individual,  but  is  absolutely  necessary 
jf  security  to  the  public  be  also  the  object  of  the  law.     The  same  couclusion  is  to  be 


PRELIMINARY  DISCOURSE.  cxliii 

depend  much  on  the  species  and  degree  of  injury  likely 

to  result  from  the  act.     It  is  obvious  that,  in  many  'in-     [  *cxliv  ] 

stances,  itought  to  be  regulated  in  analogy  to correspond- 

drawn  from  the  consideration  that  the  law  punishes  libels  on  the  dead  as  well  vs  on  the 
living,  out  of  the  just  apprehension  that  otherwise  the   family  of  the  deceased  would 
visit  the  insult  as  a  personal  affront  to    themselves;  and  one  reason,  and  tint  a  forcible 
one,  for  publishing  libels,  even  on   the  subject  of  religion,  is  the  consideration  that  to 
revile  a    man's   religion   cannot  but  be   regarded   as   an  indirect  affront    to   himself. 
Were  the  object  of  civil  and  criminal  visitation   in  respect  of  personal  defamation  by 
means  of  libels  identical,  it  is  evident  that  one  and  the  same  process  ought  to  serve  for 
both,  and  that  in  England  as  in  Scotland,  the  prosecutor  should  be  allowed  to  proceed 
at  once  for  amends  to  the  individual,  and    also  for  the  infliction  of  a  fine  or    imprison- 
ment, if  indeed  any  penal  censure  ought  to  follow  where  the  object  is  simply   the  pro- 
tection of  the  individual,  and  where  the  awarding  damages  would  probably  be  sufficient 
for  the  purpose- 
But  it  is  urged  that  the  practice  of  the  Court  of  King's  Bench. in  refusing  a  criminal 
information  where  the  alleged  libel  is  true,  shows  that   the  protection  is  of  a  personal 
nature.     It  must,  however,  be  recollected  that  in  granting  or  refusing  criminal  informa- 
tions in  case  of  libels,  the  Court  of  King's  Bench   exercises  a  discretionary  power,  act- 
ing on  principles  which  are  peculiar  to  that  proceeding,  and  that    he  practice  in  the  in- 
stance of  a  criminal  information  for  a  libel,  is    not  only  peculiar   to  that  pr<  (seeding  but 
irreconcilable  with  the  ordinary  principles  of  jurisprudence  on  which  the  law  of  England 
is  founded.     The  general    rule    is,    that   the   truth  or    falsity  of  a   libel  is  immaterial, 
whilst  in  this  instance  it  is  made  the  first  and  essential  object  of  preliminary  inquiry,— 
of  an  inquiry  conducted  in  a  mode  foreign  to  the  ordinary  forms  of  criminal  justice,  not 
by  evidence  before  a  jury,  but  by  affidavits.     Such  a  mode  of  investigation,  at  all  times 
unsatisfactory,  is  the  more  so  where  the  defendant  though  the  alleged  libel  be  perfectly 
true,  has  no  means  of  compelling  those  who  know  the  truth  to  establish  it  by  their  affi- 
davits; and  yet,  when  the  information  has  been  granted,  he  is  excluded  from  giving  evi- 
dence of  the  truth,  although  the  information  was  granted  only  on   the  assumption  that 
the  statement  was  false,  a  circumstance  which    necessarily  tends  to  raise  an  unfavorable 
prejudice  against  him  on  the  trial.     Notwithstanding  such  considerations,  the  result  is 
far  more  beneficial  than  might  have  been  expected,  or  thin  possibly  cull  have  happened 
had  the  practice  been  general.     The  truth  is,  that   although  the  Court  of  King's  Bench 
;s  open  to  all  applicants  for  ciiminal  informations,  yet  in  cases  of  libel  it  is  seldom  re- 
sorted to  but  by  persons  of  rank  or  wealth.     The   proceeding  by   information  for  a  libel 
is  a  kind  of  intermediate  course   between    treating  the  insult  as  an  affair  of  honor,  and 
the  more  vulgar  ami  plebeian  course  of  presenting  a  bill  of  indictment  :>t  the  sessions  or 
assizes.     The  libelled  pirty    has  an  opportunity  of  exculpating  himself  by  means  of  a 
denial  of  the  imputation  on  his  conduct   and   character  in  the  most  publia  manner,  and 
under  a  solemn  sanction;  his  adversary  is  the  more  ready  to  make  concession  where, 
from  the  form  of  the  proceeding  his  character  for  courage    is   no1  implicated,  and  where 
the  truth  of  the  fact  having  been  solemnly  denied,  an  opportunity  is  afforded  for  expla- 
nation, concession,  or  apology.     And  thus  it  happens  that  a  course  of  proceeding  which 
is  to  a  certain  extent  inconsistent  with    general   principles,  is   in   its  limited  application 
rendered  beneficial  by  particular  considerations.     Men  cannot   be   moulded  and  adapted 
to  the  laws:  the  laws  must  be  accommodated  to  men,  and  not  such  as  they  ought  to  be, 
but  such  as  they  are;  and  if  even  a  portion  of  a  considerable  and  powerful  class  of  the 
community  can  be  induced  to  submit  themselves  to  the  law  instead  of  resorting  to  vio- 
lence, this  is  au  advantage  to  society  which  it  would  be  unwise  to  sacrifice  for  the  mere 


cxliv  PRELIMINARY  DISCOURSE. 

ing  penal  provisions  contained  in  the  same  code.  When  such  an 
offence  amounts  to  the  crimen  Icesce  majestatis,  the  offender  is  of 
course  subject  to  the  penalties  of  treason.  Where  the  offence  con- 
sists in  a  solicitation  to  commit  some  other  substantive  offence,  which 

is  in  consequence  perpetrated,  then  it  partakes  of  the 
[  *cxlv  ]     "nature  of  that  offence,  and  is,  in  effect,  but  a  means 

of  its  accomplishment.  But  where  the  criminal  object  is 
not  accomplished,  in  consequence  of  such  an  illegal  solicitation, 
there  is  room  for  a  distinction  in  favor  of  the  offender,  to  allow 
him  the  benefit  of  a  locus  jtosnilentioe  (k). 

sake  of  legal  symmetry;  and  the  practice  may  well  be  permitted  without  establishing 
any  general  rule,  even  although  it  be  irreconcilable  with  the  ordinary  and  general  prin- 
ciples on  winch  the  law  proceeds. 

(&)  Some,  it  is  well  known,  have  supposed  that  the  publication  of  a  defamatory  satire 
was,  by  the  law  of  the  Twelve  Tables,  punishable  with  death.  Montesquieu,  Sp.  of 
Laws.  The  authority  for  this  is  a  quotation  by  St.  Augustine  (De  Civitate  Dei,  lib.  2, 
c.  9,)  from  Cicero  de  Republica,  lib.  4,  c.  10.  In  that  passage,  Scipio  Africauus,  dis- 
coursing of  the  licentiousness  of  the  Greek  comedies,  speaks  thus; — Apud  Graecos  fuit 
etiam  lege  concessum,  ut  quod  vellet  comceilia,  de  quo  vellet  nominatim  diceret.  Nostrae 
contra  xii.  tabulae  cum  perpaucas  res  capite  sanxissent  in  his  banc  quoque  sanciendam 
putaverunt;  Si  quis  occentavhset  (actitavisset)  sive  carmen  condidissct  quod  infamiam 
facer et flagitiumve  alter i.  Prseclare,  judiciis  enim  magistratum  disceptationibus  legiti- 
mis'propositiam  vitam,  non  poetarum  ingeniis  habere  debemus,  nee  probrum  audire 
nisi  ea  lege  ut  respondere  liceat  et  judicio  defendere. 

It  would  be  difficult,  however,  in  the  absence  of  stronger  and  more  direct  authority, 
to  accede  to  this  position  that  the  Decemviral  Code  punished  this  offence  capitally,  al- 
though certainly  the  pcena  capatis  did  not  always  mean  the  punishment  of  death. 
For,  in  the  first  place,  the  authority  is  weakened  by  the  consideration  that  St.  Augus- 
tine himself  does  not  profess  to  communicate  the  exact  words  even  of  Cicero.  Secondly 
the  immediate  and  shocking  severity  of  a  law  which  visited  the  authors  of  calumnious 
verses,  such  as  would,  in  many  instances,  merit  contempt  rather  than  legal  penalties 
and  prove  far  more  fatal  to  the  reputation  of  the  author  than  to  the  honor  of  the  object 
of  his  attack,  affords  intrinsic  evidence  sufficient  to  excite  strong  suspicion  and  doubt 
upon  the  subject  in  the  absence  of  the  most  direct  and  certain  evidence,  of  the  existence 
of  such  a  law.  Such  doubts  acquire  additional  force  from  a  consideration  of  the  sources 
from  which  the  Decemviral  Code  was  compiled. 

The  Athenian  laws  were  those  which  were  principally  consulted  by  the  framers  of  the 
Twelve  Tables.  Liv.  iii.  13.  Gell.  Noct.  Att.  xx.  i.  but  they  afforded  no  prototype  for  such 
a  law.  The  laws  of  Solon,  it  is  well  known,  punished  calumniators  by  subjecting  them 
merely  to  pecuniary  fines.  (1  Pet.  Leg.  Attic.  Lycias  in  Theomnestem.)  It  is  not  prob- 
able, therefore,  a  priori,  that  the  framers  of  the  new  laws  would  have  visited  the  offence 
with  so  incommensurate  and  vkidictive  a  punishment.  It  has,  indeed,  been  suggested 
that  this  was  a  part  of  the  Leges  Regiae,  which  was  retained  in  the  Twelve  Tables. 
There  seems,  however,  to  be  no  trace  of  any  such  prior  law  :  and,  from  the  very  passage, 
as  quoted  from  St.  Augustine,  it  may  be  inferred,  that  the  law  of  the  Twelve  Tables  con- 
tained the  first  restraint  of  that  license  to  defame,  which  had  been  abused  by  the  Greek 
comedians.  Apud  Graecos  fuit  etiam  lege  concessum  ut  quod  vellet  Comoedia  de  quo 
vellet  no  minatim  diseret.     A'vstrte  contra  duodecim  tabula,  &c.     In  the  absence  of  any 


PRELIMINARY  DISCOURSE.  cxlv 

*At  all  events,  the  punishment  ought  never  to  exceed   [  'exlvi 
that  which  would  by  law  have  been  inflicted,  had   the 

historical  evidence  of  the  previous  existence  of  such  a  law  as  part  of  the  Leges  Regise, 
it  is  improbable  that  any  such  existed  in  that  rude  aud  illiterate  era  of  the  Roman 
history,  previous  to  the  formation  of  the  Twelve  Tables,  when  few  were  likely  to  offend 
by  reading,  still  fewer  by  writing,  satires.  That  the  Romans,  however,  were  in  the 
habit  of  making  and  reciting  verses  when  the  law  of  the  Twelve  Tables  was  enacted  and 
that  those  laws  containe  1  sanctions  to  restrain  the  abuse  of  that  practice,  clearly  appears. 
Thus  Cicero,  (Tuscul.  Disp.  lib.  4.  c.  2.)  "  Gravissimus  auctor  in  originibus  dixit  UatO 
morem  apud  majores  hunc  epularum  fuisse,  ut  deinceps  qui  accubarent  canerent  ad 
tibiam  clarorum  virorum  laudes  et  que  virtutes.  Ex  quo  perspicuum  est,  et  cantus  turn 
fuisse  rescriptos  vocum  sonis,  et  carmiui,  quamquam  id  quidem  etiam  XII.  Tabuke  dec- 
larant, condi  jam  turn  solitum  esse  carmen;  quod  ne  liceret  fieri  ad  alterius  iojarlam, 
lege  sanxerunt."  It  follows,  that  so  far  was  Cicero  from  knowing  or  supposing  that 
any  law  existed  anterior  to  those  of  the  Twelve  Tables,  which  punished  the  author  of 
defamatory  verse,  that  he  even  cites  the  law  of  the  Twelve  Tables  to  show  that  songs  were 
composed  at  all  in  that  remote  age. 

Did  the  Decemviri  create  such  a  law  for  political  purposes,  and  in  order  to  support  an 
usurped  authority  ?  M.  Montesquieu,  the  author,  at  least  the  supporter  of  this  su^es- 
tion,  seems  to  have  eagerly  admitted  the  existence  of  the  law  for  the  purpose  of  building 
a  theory  upon  it.  He  attempts  to  show,  that,  of  the  three  great  forms  of  government 
the  aristocratical  is  that  which  visits  libellers  with  most  severity,  and  cites  this  law  of 
the  Decemvirs  by  way  of  illustration.  To  confute  such  a  theory  would  be  a  departure 
from  our  present  subject.  It  is  strikingly  in  opposition  to  the  description  which  Tacitus 
gives  with  so  much  force  and  feeling,  of  the  ulliinum  in  servitule  suffered  by  the  Romans 
under  the  tyranny  of  Domitian.  But  if  there  be  a  difficulty  in  accounting  for  the  origin 
of  such  a  law,  there  would  be  a  still  greater  one  in  accounting  for  the  approbation  which 
the  laws  received  as  well  from  the  Roman  people  as  from  their  historians.  The  punish- 
ing of  those  who  had  libelled  illustrious  persons,  with  capital  penalties,  under  pretence 
of  a  violation  of  the  Lex  Uesae  Majestatis,  was  accounted  a  tyrannical  and  sanguinary 
measure  in  the  times  of  Sylla,  Augustus,  and  Tiberius;  what  then  would  have  been 
thought  of  such  a  penalty  for  defamation  in  an  early  age  of  the  Republic  ?  How  is  it 
possible  to  suppose  that  so  severe  and  tyraunical  a  law  would  have  been  favorably  re- 
ceived by  the  people,  or  afterwards  commended  by  their  great  historians  ? — (See  Tacitus 
Annal.  iii  27;  Livy,  lib.  1.) 

On  the  other  hand,  in  addition  to  the  weakness  of  the  proof  which  can  be  adduced  as 
to  the  existence  of  such  a  law  as  part  of  the  Twelve  Tables,  an  1  the  internal  evidence 
which  the  supposed  law  affords  to  disprove  itself,  it  may  be  observed  that  the  laws  of 
the  Twelve  Tables  did,  in  fact,  prohibit  all  personal  injuries  under  a  pecuniary  penalty. 

Si  injuriain  faxit  alter]  viginti  quinquc  :eris  pcena3  sunto. 

In  the  language  of  the  Romau  jurists,  earlier  as  well  as  later,  the  general  term  inju- 
ria included  a  wrong  by  writing  or  Bpeaking,  as  well  as  by  personal  violence.  Was  then 
a  libeller  by  the  same  law,  punishable  by  a  mo  '.irate  pecuniary  fine,  as  a  corupe+i-atimi 
to  the  party  injured,  whilst  his  life  was  forfeited  to  the  state  ?  Or,  if  the  private  wrong 
did  not  fall  within  the  scope  of  the  term  injuria,  was  actual  or  personal  violence  pan" 
ished  by  a  fine  only,  whilst  the  slightest  injury  to  reputation,  by  a  song,  or  by  writing' 
was  to  be  visited  by  capital  punishment  ?  Again,  there  is  great  reason  for  supposing 
that  by  the  laws  of  the  Twelve  Tables,  the  author  of  the  Carmen  malum  was  subjected, 
not  to  capital  punishment,  but  to  corporal  castigation  by  beating. 

Vol.  I.  9 


cxlvi  PRELIMINARY  DISCOURSE. 

[  *cxlvii  ]   offence,  *to  the  accomplishment  of  which  the  solicitation 
or  libel  tends,  been  actually  committed.     This  observa- 

The  principle  of  retaliation  -which  was  recognized  by  that  Code,  was  obviously  inap- 
plicable in  the  case  of  a  malignant  and  satirical  poem.  To  allow  retaliation  would  be 
but  an  illusory  vindication  to  an  honorable  but  illiterate  man,  who  had  suffered  from 
an  offensive  and  provoking  satire  ;  and  it  is  not  impossible,  that  the  subjecting  the  body 
of  the  offender  to  the  actual  cudgel  of  the  sufferer,  might  be  deemed  the  approximate 
substitute  for  the  use  of -the  invisible  and  intellectual,  but  rude,  powerful,  and  more 
galling  lash  of  satire,  the  application  of  which,  in  return,  was  impossible.  Be  this  as 
it  may,  certain  it  is,  that  the  svpplicium  fusiuarium  was  a  punishment  inflicted  upon 
libellers  by  the  ancient  Roman  law,  and  as  many  able  commentators  have,  with  great 
reason  supposed,  by  the  law  of  the  Twelve  Tables.  Horace,  in  his  well-known  lines,  in 
reference  to  the  Carmen  famosum ,  not  only  specifies  the  mode  of  punishment,  but  seems 
to  cite  the  law  which  inflicted  it  as  the  first  which  which  was  made  in  restraint  of  libels. 

Quinetiam  lex 
Poenaque  lata,  malo  qua3  nollet  carmine  quemquam, 
Describi:  vertere,  modum  formidine  fuslis 
Ad  bene  dicendum  delectandumque  redacti 

Epist.  lib.  11.  ep.  1,  v.  152. 

That  the  paznafustuaria  was  inflicted  on  one  class,  at  least,  of  libellers,  is  generally 
admitted  by  the  unanimous  voices  of  legal  as  well  as  poetical  commentators.  And  it  is 
not  easy  to  ascribe  this  mode  of  punishment  to  any  other  period  than  that  of  the  Twelve 
Tables.  Cicero,  as  well  in  the  passage  quoted  by  St.  Augustine,  from  the  DeRepublica,  as 
in  that  cited  from  the  Tusculan  Disputations,  expressly  refers  to  the  law  of  the  Twelve 
Tables  as  the  first  which  applied  restraint  to  the  carmen  infame.  The  punishment, 
therefore,  to  which  the  formidofnstis  of  Horace  refers,  could  not  well  be  eaidier  than 
the  law  of  the  Twelve  Tables  ;  neither  could  it  well  be  later,  for  the  context  shows  that 
the  poet  was  describing,  as  matter  of  history,  the  earliest  check  imposed  by  the  law  on 
the  publication  of  defamatory  verses. 

Any  later  law  inflicting  such  a  punishment,  must,  in  all  probability,  have  been  en- 
acted previously  to  the  Porcian  law,  which  took  away  from  the  magistrate  the  power  of 
inflicting  corporal  punishment  on  the  person  of  a  Roman  citizen  ;  there  is,  however,  no 
trace  to  be  found  of  the  abrogation  of  the  capital  punishment,  and  the  substitution  of 
the  supplicium  fusiuarium,  either  in  that  interval  or  at  any  other  time  ;  nor  does  it  ap- 
pear that  capital  punishment  was  ever  inflicted  under  this  supposed  law  of  the  Twelve 
Tables.  Some,  indeed,  have  doubted  whether  the  punishment  by  beating  was  known 
to  the  Decemviral  laws,  (Hotomann.  c.  77.;  Dirksen  on  the  Twelve  Tables,  511.)  and 
therefore  infer  that  the  law  cited  by  Horace  is  of  later  date.  This  however,  seems  to  be 
erroneous  assumption.  See  Cicero  de  Legibus  ;  Augustine  de  Civ.  Dei,  Lib.  21.  c.  11. 
Octo  poenarum  genera  in  legibus  continentur,  damnum,  vincula  verbera  talio,  ignominia, 
exilium,  mors,  servitus  :  and  see  Dirksen's  Fragments  of  the  Laws  of  the  Twelve  Ta 
bles,  ad.  tab.  8.  fr.  14. 

Again,  allusion  seems  to  be  made  to  the  same  law  in  the  De  Arte  Poetica. 

Lex  est  excepta,  Chorusque 
Turpiter  obticuit,  sublato  yure  nocendi 

It  is  very  difficult,  indeed,   to   suppose   that  Horace  and  Cicero  did  not  allude  to  the 
ame  law,  when  each  was  speaking  of  the  abases  which  had  arisen  from  unrestricted 


PRELIMINARY  DISCOURSE,  cxlru 

tion  "ought,  however,  to  bq  confined  to  these  instances  [  "oxlviii  ] 
where  the  offence  consists  in  the  attempt  to  provoke  or 

license,  and  of  the  legal  restraints  which  I 

■  that  Horace,  in  the  pa  I,  referred  t  i  different  lawB.     If,  however,  the 

law  of  the  Twelve  T  ibles  visited  this  offence  with  fasti  gat  ion,  it  is  im| 

that  the  punishment  was  capital      It  has  indeed  I 

m  St.  Angnstine,  asserted  that  the  ras   capital   by  the  law  of  the 

Twdvo  Tables,  beoause  it  was  a  punishment  which  mi/Id   produce  death,  althoo 

oot  only  not  inten  le  1,  but  prohibite  1,  by  the  law.—  See  H 
Ant.  Rum.  Ad.     [nst.  Lib.  iv.  tit.  iv.  s.  '1. 

It   is,  however,  difficult   to  lat  Cicero,  who  himself,  in  a    pass 

cited,  enumerated  distinctly  the  different  modes  of  punishment  authorised  and  pr  I 

by  the  law,  and  in  which  he  mentions  Verbera  as  distinct  from  all  which  could 
sidered  capital,  such  as  Mors,  Exillium,  &o.  should  confound  the  quality  ai 
a  higher  species  of  punishment  with  the  effect  and  possible  consequences  of  a  distinct 
and  inferior  one. — Be  this  as  it  may,  it  is  oerl  wa  t  i  it  many  criti  ■-  an  I  abl  i  com        ta- 
tors  have  maintaine  1  the  opinion  that  th  i  law  of  the  Twelve  Tables  punished  the 
not  capit ailv.  but  by  fustigation. — Fustua  ;ium  constitutum  erat  in  auctorem 

oarminum   infamium.     Porphyrion,  ad.  Horat. — Heinneccius.     Ant.  Bom.  Lib.  iv.  tit. 
iv.  s.  ■_'.     Lege  xii.  tabularum  cautum  est  ut  fustibus,  feriretur  qui  publico  inveheretur. 
— Cornutns  ad,  Pers.  Sat.  1.     Si  quis,  carmen  occentassit  quod  alteri  fiagitium  faxit, 
fuste  csBditor. — Charondas,  S  55.     Dirksen  ad.  xii,  Tab.  515.     Si  quis  pipulo  oc 
Bit  carmenve  condidisset  quod  infamiam  fa  i  nve  alteri,  fuste  ferito. — F 

After  all,  it  is  matter  rather  of  speculative  curiosity  than  of  practical  Utility,  to  in- 
quire whether  the  decemvirs  did  or  did  not  annex  capital  punishment  to  this  offence  ;  if 
they  did,  the  instance  must  stand  as  a  solitary  and  anomalous  memorial  of  barbarous 
ignorance  and  cruelty  in  the  annals  of  jurisprudence  ;  one  without  a  prototype  in  former, 
or  a  parallel  in  succeeding  generations.  History,  however,  records  no  instance  in  which 
this  law,  if  it  existed,  was  ever  put  in   force,  and    in  no  of  the   Roman 

republic  or  empire,  not  even  under  the  worst  seasons  of  imperial  tyranny  and  op 

is  the  offence  of  libel  without  distinction  made  capital,  thongb  certainly  the  pun- 
ishment of  death  was  annexed  in  after  times  to  several  modifications  of  the  crime.  Not- 
withstanding the  charge  which  M.  Montesquieu  has  urged  against  Sylla,  of  havii 

I    the   punishment   against  libellers  and   Batirists,  yet  it  seems  that  by  his  laws 
they  were  in  general  subject  merely   to  pecuniary  lines,  at    least  no  punishment 
tion    1  except  one.     See  Matthssus,  ad.  lib.  47.      Dig.  tit.  4,  s.  4.     The  Cornelian  law 
uce  a   penalty  of  a  remarkable    nature,    which  has  given  rise  to  some 
doubt  :     •■  Si  quia   librum   ad   infamian   alicujus  pertinentem   Bcripserit,    comp 
ediderit,  dolose  malo  fecerit  quo  quid  eorum  fieret,  etiam  si  alteriw  nomi  •  ediderit,  vel 

re  injuriarum  agere  lie  i  lemn  itua  -it  qui  id  fecit  int 

lent  ex  I  there."     This  law,  according  to  some,  was  meant  to  deprive  a  libeller 

of  the  right  of  making  a   testament.      The    real    meaning   Beems  to  have  been,  that  he 
shoul  1  be  incapable  of  giving  hia  testimony  in  a  oourt  of  justice  ;  an  appropriate  dis- 
qualification, founded  probably  on  the  presumption  that  a  nun  who  by  a  false  and 
mous  charge,  whether  of  a  judicial  or  extra  judicial  nature,  had  deliberately  attempted 
to  destroy  the  reputation  of  another  could  not  be  deemed  worthy  of  credit  as  a  \ 

The  fact  that  Sylla,  (Cio.  Fam.  Epist.  8.  11.)  Augustus,  and  Tiberius,  punished 
those  who  were  guilty  of  writing  libels  on  illustrious  persons  with  death,  under  the 
Btrained  pretence  of  a  violation  of  the  Lex  lccs<r  Majestatis,  is  strong  to  show  that  no 
general  law  then  existed  which  warranted  capital  punishment     It  is  much  more  proba- 


cxlviii  PRELIMINARY  DISCOURSE. 

[  *cxlix  ]  incite   *some  particular  individual  to  the  commission  of 

an  offence.     For  it  may  receive  a  great  aggravation  from 

[    *cl  ]      its  tendency  to  produce  a  widely  extended  mischief  from 

ble  that  they  would  have  enforced  or  revived  an  obsolete  law  than  have  incurred  the 
odium  of  such  a  manifest  abuse  of  a  different  law.  Tiberius,  under  the  pretence  that 
Agrippina,  his  daughter  in  law,  had  indirectly  calumniated  him,  by  refusing  to  eat  ap- 
ples which  he  knew  she  did  not  dare  to  taste,  and  which  he  offered  that  her  refusal  might 
afford  a  pretext  for  complaint,  and  also  by  her  seeking  refuge  from  his  monstrous  cruelty 
at  the  statue  of  Augustus,  caused  her  to  be  beaten  for  the  supposed  calumnies,  with 
such  violence  as  to  force  out  one  of  her  eyes.  Not  content  with  such  savage  barbarity, 
and  jealous  least  a  more  merciful  fate  should  deprive  him  of  his  unhappy  victim,  he  en- 
deavored to  prevent  a  voluntary  death,  by  forcing  food  into  her  mouth,  and  even  pur- 
sued his  abominable  revenge  beyond  the  grave,  by  heaping  insult  on  her  memory.  And 
yet  had  this  monster  the  audacity  to  claim  commendation  for  his  mercies. 

Quondam  vero  inter  ccenam  porrecta  a  se  poma,  gustare,  non  ausam  etiam  vocare  de- 
siit,  simulans  se  veneni  crimine  arcessi,  cum  prasstructum  utrumque  consulto  esset,  ut 
et  ipse  tentandi  gratia  otferret,  et  ilia  quasi  certissimum  exitium  caveret.  Novissime 
calumniatus  modo  ad  statuam  Augusti  modo  ad  exercitus  confugere  velle,  Pandatariam 
relegavit,  convicanintique  oculum  per  centurionem  verberibvs  excuasit.  Euisus  mori 
inedia  destinantia,  per  vim  ore  diducto,  infulciri  cibum  jussit.  Sed  et  perseverantem 
atque  ita  absumptam  criminosissime  insectatus  est,  cum  diem  quoque  natalem  ejus  inter 
nefastos  referendum  suassisset.  Imputavit  etiam  quod  non  laqueo  strangulatam  in  Ge- 
monias  abjecerit;  proqve  tali  dementia  interponi  decretum  passus  est,  quo  sibi  gratia? 
agerentur  et  Capitolino  Jovi  donum  ex  auro  sacraretur.     Sueton.  Tiber,  c.  54. 

By  a  senatus  consultum,  it  was  afterwards  prohibited,  ne  quis  in  alterius  injuriam  ad 
statuas  principum  confugeret  imaginesve  eorum  portaret,  qui  secus  faceret  in  vincula 
mitteretur. 

In  the  next  place,  by  a  Senatus  consultum,  as  well  as  by  several  imperial  constitu- 
tions, the  author  or  publisher  of  the  Libellus  Famosus  was  liable  to  capital  punishment. 
This  severe  penalty  was  evidently  founded  on  the  principle  of  the  Lex  Talionis,  which 
called  for  the  infliction  of  death  upon  one  who  had  by  a  false  and  capital,  though  secret 
judicial  charge,  deliberately  practiced  against  the  life  of  another.  The  severity  of  such 
a  law  may  be  accounted  for,  even  though  its  policy  should  not  be  justified,  by  the  con- 
sideration, that  in  those  times  of  cruelty  and  oppression  for  which  they  were  calculated, 
secret  accusations  of  the  most  heinous  and  improbable  offences  were  in  effect  but  the  in- 
struments used  by  legal  assassins;  under  the  reign  of  a  despotic  emperor,  suspicion 
was  equivalent  to  proof;  trial  to  condemnation. — (Gibbon's  Decline,  &c.)  But  in  order 
to  bring  an  offender  within  the  penalty  of  the  Libellus  Famosus,  it  was,  it  seems,  essen- 
tial that  the  charge  should  be  a  secret  one  of  a  capital  offence;  this  seems  clearly  to 
appear  from  a  very  cursory  view  of  the  laws  themselves.  Thus  the  first  constitution  of 
the  Theodosian  code  (which  contains  a  series  of  enactments  relating  to  such  libels,)  en- 
acts as  follows: — Si  quando  famosi  libelli  reperiantur,  nullas  exinde  calumnias  patiantur 
quorum  de  factis  vel  nominibus  aliquid  continebunt,  sed  scriptionis  auctor  potius  reperi- 
ater,  et  repertus  cum  omni  vigore  cogatur,  his  de  rebus  quas  proponendas  credidit  com- 
probare,  &c. 

Again,  in  the  second,  it  is  observed,  "  Qui  accasandi  fiduciam  gerit  oportet  compro- 
bare  nee  occultare  quoe  sciverit  quoniam  predicabilis  erit  ad  dictationem  publicam  me- 
rito  perventurus." 

Again,  in  the  third,  "  Famosis  libellis  fides  habenda  non  est,  nee  super  his  ad  nostram 
cientiam  referendum,  cum  eosdem  libellos  flammis  protinus  conducat  aboleri  quorum 
auctor  nullus  existit." 


PRELIMINARY  DISCOURSE.  cl 

its  influence  on  numbers.     As  in  the  ease  where  an  of- 
fender 'is  guilty  of  printing  and  circulating  irreligious,         Vli  ] 

Again,  by  the  fourth,  "  Boriptio  libellorum  quaa  nomine  aectuatorit  caret 

minime  examinanda  est,  sed  penitos  abolenda,  nam  qui   accusal  i    oonfi- 

dat,  libera  potius  intend  iaet  occulta  oonsoriptione  akerius  debet  vilam 

in  jn  lioium  devocare." 

By  the  fifth,  "  Non  igitur  vita  cujasquam  non  digu  issa  his  machinis  vaeilla- 

bit,  nun  omnes  hujusmodi  libellos  (soil,  fern — )  ooncremari  decern 

i,  by  the  eighth,  "  Jnmpridem  adversus  oalumnias  ftrmissima  sunt  oomparata 
prsasidia.     Nullus  igitnr  oalumniam  metuat,     Contomelia  vero  qua  caput  alteri 
tra  juris  ordinem   pulsat.  depreaaa  nostris   legibus  jaoeat,  intercidat  furor  famosorum 
libellorum." 

By   the  ninth,  which  was  an  edict  of  the  Emperors  Valentiman  and  Valens 
wards  imported   into  the  Digest,  ••  Si  quis  famosum  libellum  si  publico, 

vel  in  quocuniqiie  alio  loco  ignarus  repererit,  aut  eorrumpaj  prius  quam  alter  inveniat, 
nulli  oonfiteatur  inventum.  Si  vero  non  Btatim  easdem  chartulas  corruperit  vel  igne 
eonsumpserit  Bed  earum  vim  manifestaverit,  Sciat  se  quod  auctorem  hujusmon  li  delicti 
eapitali  sentential  subjngandum.  Sane  si  quis  devotionis  suoc  ao  Balutis  publioaa  custo- 
diam  gerat,  nomen  suum  pro/iteatur,  el  qua  per  famosum  libellum,  persequenda  puta- 
verit  ore  proprio  edicat,  its  ut  absque  aulla  trepidati  t,  sciens  quidem  quo  1  ri 

adsertionibus  Buis  veri  fides  fnerit  opitulata,  laudem  maximam  et  priumium  a  nostra 
dementia  consequctur,  sin  verominime  veraostenderit  eapitali  poena  plectetur." 

Sylla,  as  lias  already  been  observed,  decreed  that  to  declaim  against  public  officers 
should  be  deemed  a  violation  of  the  Lex  183883  Majestatit.  Augustus  Caesar,  by  a  forced 
and  unwarranted  construction,  extended  the  penalties  of  treason  to  those  who  libelled 
illustrious  characters.  Tiberius  followed  his  example,  and  in  his  reign  Cremutius  Cor 
dus,  charged  with  having  called  Cassius  the  last  of  the  Romans,  escaped  a  public  exe- 
cution merely  by  voluntary  starvation.  In  later  times  of  the'  empire,  the  punishment 
of  libellers  was  increased  or  relaxed  according  to  the  temper  and  disposition  of  the 
reigning  monarch.  In  the  place  of  a  moderate,  uniform,  and  permanent  administration 
of  justice  upon  just  and  firm  principles,  was  substituted  either  excess  of  severity  or 
clemency,  according  to  the  pleasure  of  the  reigning  autocrat.  For  though  the  errors 
were  not  usually  on  the  side  of  mercy,  yet  the  Emperor  Theodosius  seems  to  have  car- 
ried his  generosity  to  a  somewhat  romantic  extent  in  avowing  an  intention  to  pardon  all 
maledictions  against  himself,  or  the  times  in  which  he  lived. — "  Si  quis  modesthu  ne- 
scius,  et  pudoria  ignarus.  improbo  petulantique  maledicto  uomina  nostra  credididerit  la- 
cessenda  ac  temulentia  turbulentua  obtrecator  temporum  fuerit,  eum  poena  nolumas 
gubyogari,  neque  durum  anquid  no  que  asperum  sustinere,  quoniam  id  si  ex  levitate 
processerit  contemendum  est,  m  exinsauia  miseratione  digissimum,  is  ab  injuria  remit- 
tendum." 

As  to  the  penalties  denounced  by  the  Mosaic  law,  see  above,  p.  xi  ;  by  the  laws  of 
Greece,  ib.  p.  xxxiv  ;  of  France,  i'1-  p.  xxxii  ;  of  England,  infra.  voL  ii. 

By  the  law  of  Spain,  he  who  libels  another  by  a  written  del  unatory  libel,  (libellous 
infamatorios)  incurs  the  Bame  punishment  thai  the  party  libelled  would  inour  if  the  im- 
putation were  true.  And  in  case  the  libel  be  in  writing,  the  libeller  is  not  exempted 
from  punishment  although  the  libellous  matter  be  true.  Bat  in  the  ease  of  oral  Blander 
the  party  who  uttered  the  words,  will  be  admitted  to  prove  that  they  were  true,  if  the 
public  were  interested  in  its  being  known  ;  but  if  the  public  be  not  interested,  he  is  not 
admitted  to  such  proof,  and  consequently  incurs  the  punishment,  although  the  slander 
be  true,  because  no  one  has  a  right  to  insult  another  ;    and  it  is  always  injurious  and 

9* 


cl  PRELIMINARY  DISCOURSE. 

[  *cli  ]        seditious,  or  immoral  publications  amongst  society  in  gen- 
[  *clii    ]     eral,  *at  the  hazard  of  tainting  and  corrupting  the  princi- 
ples of  the  great  body  of  society. 
[  *cliii  ]  *It  seems  to  be  very  doubtful,  whether,  in  point  of 

principle,  any  penalty  by  fine  or  imprisonment  ought  to 
[  *cliv    ]     be  *inflicted,  in  respect  of  personal  defamation,  where 
the  injured  individual  can  obtain  complete  satisfaction 
in  damages.     It  would  obviously  be  an  inconvenient  and 
civ  ]       unwarranted  restraint  on  natural  liberty  to  impose  *a 
sentence  of  imprisonment  where  ample  amends  could  be 
made  to  the  injured  party  by  awarding  damages.     The  point  at 
which  penal  visitation  ought  to  begin  to  attach,  either  in  the  ab- 
sence of  reparation  to  the  individual,  or  in  addition  to  it,  is,  where 
either  civil  reparation  cannot  be  enforced,  on  account  of  the  dif- 
ficulty of  making  the  wrongdoer  responsible,  or  where    the  com- 
pelling civil  amends,  is  not  sufficient  to  protect  the  interests  of  the 
public.     Thus,  according  to  the  law  of  England,  the  open  taking 
and  using  the  property  of  another,  is  merely  the  subject  of  a  civil 
action  to  obtain  compensation  in  damages,  and  does  not  amount  to 
a  public  crime  ;  but  where  the    taking  is  under  circumstances  of 
secrecy  or  force,  then  the  civil  action  being  inadequate  to  the  pro- 
tection of  society,  the  act  becomes  criminal,  even  in  some  cases, 
of  a  capital  extent  (/). 

The  effect  of  permitting  an  offender  to  be  visited  criminally,  as 
well  as  civilly,  in  respect  of  the  same  personal  injury  by  defamation, 
may  frequently  be  to  place  both  proceedings  in  hazard  ;  a  court  or 
jury  would  in  all  cases  be  inclined  to  diminish  the  amount  of  civil 
damages,  where  they  suppose  that  the  defendant  would,  in  addition 
to  the  exaction  of  those  damages,  be  further  subjected 
[  *clvi  ]       to  a  criminal  prosecution  and  to  fine,  or  even  Imprison- 
ment, whilst,  after  the  payment  of  damages,  it  may  be 

unjust  to  reproach  others  with  their  defects  or  faults,  however  true  they  may  be.  John- 
son's Institutes  of  the  Civil  Law  of  Spain,  p.  277.  By  the  fame  law,  he  who  libels 
another  with  stigmatizing  or  infamous  language  (palabra  denigrativa)  shall  pay  1,200 
maravedis,  and  shall  be  obliged  to  recant  (desdecre)  if  he.  is  not  a  hidalgo. — ib.  He 
who  libels  his  father  must  pay  600  maravedis  ;  400  to  the  injured  party,  and  200  to  the 
accuser. — ib. 

{I)  Although  the  law  of  England  allows  the  party  libelled  to  proceed,  at  the  same 
time,  both  civilly  for  damages  and  by  indictment,  yet  in  practice  it  very  rarely  hap- 
pens that  the  party  proceeds  in  both  ways.  And  where  an  application  is  made  for  a 
criminal  information  for  a  libel,  the  ordinary  condition  of  granting  it  is,  that  the  appli- 
cant shall  not  bring  an  action.  Would  it  not  be  desirable,  that  in  all  cases  the  party 
should  be  restricted  to  one  mode  of  proceeding,  and  in  adopting  either,  should  be  con- 
sidered as  having  made  his  election  ? 


PRELIMINARY  DISCOURSE.  dvi 

exceeding  the  real  injury,  a  court  or  jury  would  strongly  lean  against 
a  criminal  conviction. 

The  author  had  purposed  to  conclude  these  preliminary  observa- 
tions with  a  brief  historical  sketch  ol  the  English  law,  as  connected 
with  the  subject.  Neither  time  nor  space  at  present  permit  such  a 
detail,  hut  it  may  he  proper  to  add  a  few  general  remarks  in  refer- 
ence to  the  law  of  England,  addressed  principally  to  the  English 
law  student. 

Even  to  the  student  it  is  scarcely  necessary  to  observe,  that 
though  his  immediate  object  may  be  to  master  the  details  and  tech- 
nicalities of  a  particular  branch  of  the  law,  he  ought  ever  to  keep 
in  view  another  object  of  great  importance,  and  still  greater  inter- 
est,— the  acquisition  of  a  more  intimate  and  scientific  knowlei 
the  principles  on  which  the  legal  system  is  founded,  of  its  peculiar 
genius,  merits,  and  defects. 

It  is  further  to  be  observed,  that  there  is  no  other  branch  of  our 
own  law,  of  equal  importance  and  complexity,  which  depends  so 
little  as  this  does  on  positive  legislative  enactments,  and  consequent- 
ly, so  much  on  precedent  and  common  law  principles. 

That  the  common  law  system,  which  consists  in  applying  to  every 
new  combination  of  circumstances,  rules  of  law  derivable  from  legal 
principles  and  judicial  precedents,  possesses  great  and  splendid  ad- 
vantages, can  no  more  be  doubted,  than  that  it  is  subject  also  to 
considerable  defects. 

The  proofs  of  the  latter  position  are  far  too  manifest 
and  too  strong  to  be  overborne,  even  by  the  authority  *of     [  •civil  ] 
Lord  Coke  himself,  consummate  master  as  he  was  of  all 
the  treasures  of  common  law  learning. 

Nature's  fancied  impatience  of  a  vacuum  was  not  more  complete 
than,  according  to  Lord  Coke,  is  the  abhorrence  of  the  common  law 
from  all  that  is  inconvenient  or  unreasonable. 

Nothing  (he  says)  is  lawful  which  is  inconvenient  ;  and,  again, 
"  the  law,  that  is  the  perfection  of  reason,  cannot  suffer  any  thing 
that  is  inconvenient." 

That  Lord  Coke  should  both  feel  and  express  that  unbounded  ad- 
miration of  the  common  law,  which  was  probably  one  main  found- 
ation of  his  excellence  in  that  branch  of  learning,  and  which  the 
very  consciousness  of  that  excellence  in  turn  served  to  aug- 
ment, cannot  be  matter  either  of    regret  or  surprise  (tn)  ;   that 

(m)  This  great  master  of  the  common  law  of  his  time,  was  never  weary  of  reiterat- 
ing his  commendation  of  the  law  ;  he  says  1  Ins.  97,  b.  "  an  argument  drawn  from  an 


clvii  PRELIMINARY  DISCOURSE. 

[  *clviii  ]    ^such  commendation  *ought  to  be  received  with  many 
grains  of  allowance,  and  that  excessive  panegyric,  how- 
ever agreeable  to  national  prejudices,  is  injurious  in  proportion  as  it 
retards  improvement,  will  not  at  the  present  day  be  disputed. 

The  common  law,  therefore,  according  to  Lord  Coke,  is  perfect 
reason,  but  to  set  up  the  reason  of  the  best  and  wisest  of  men,  as 
the  standard  of  what  is  lawful,  would  be  in  fact  to  make  individual 
discretion  and  reason  the  rule  of  right,  which  would  be  to  dispense 
with  all  pretentions  to  certainty.  What  is  meant,  then,  as  indeed 
Lord  Coke  himself  expresses  it,  is  not  "  every  man's  natural  rea- 
son," but  artificial  reason,  derived  from  study  and  experience  of  the 
law.  But  as  the  natural  reason  of  one  man  differs  from  that  of  an- 
other, so  not  only  will  one  man  derive  a  conclusion  different  from 
that  of  another,  from  the  same  legal  data  or  precedents,  but  also  in 
the  application  of  the  same  legal  or  artificial  rule  to  the  same  cir- 
cumstances. Artificial  or  legal  reasons,  therefore,  so  far  from  ad- 
mitting of  that  unity,  certainty,  and  perfection,  to  which  natural 
reason  cannot  pretend,  is  subject  to  the  like,  and  even  in  some  re- 
spects greater  uncertainty  ;  it  necessarily  depends,  in  the  first  place, 
on  the  exercise  of  natural  reason,  and  is,  therefore  liable  to  a  double 
miscarriage,  either  in  the  failure  to  extract  the  true  artificial  or 
legal  reason  ;  or,  2ndly,  in  the  failure  to  apply  that  reason  proper- 
ly, when  once  extracted  ;  hence  it  is,  that  in  the  course  of  common 
law,  many  such  miscarriages  occur. 

*clix   ]       *For  the  great  and  broad  principles  of  natural  justice, 
there  is  little  necessity  for  resorting  to  precedent  or  ex- 
ample ;  they  are  written  in  plain  characters  in  the  minds  of  all  ra- 
tional men.     It  is  in  cases  where  such  principles  conflict  with  each 

inconvenience,  is  forcible  in  law,  as  hath  been  observed  before,  and  shall  be  often  hereafter, 
nihil  quod  est  inconveniens  est  licitum.  And  the  law,  that  is  the  perfection  of  reason 
cannot  suffer  any  thing  that  is  inconvenient." 

Again,  he  observes,  "  Nihil  quod  est  contra  rationem  est  licitum.  And  this  is  another 
strong  argument  in  law,  nihil  quod  est  contra  rationem  est  liticum  :  for  reason  is  the 
life  of  the  law,  nay,  the  common  law  itself  is  nothing  else  but  reason,  which  is  to  be  un- 
derstood of  an  artificial  perfection  of  reason,  gotten  by  long  study,  observation,  and  ex- 
perience, and  not  of  every  man's  natural  reason,  for  nemo  nascitur  artifix.  This  legal 
reason,  est  summa  ratio.  And  therefore,  if  all  the  reason  that  is  dispersed  into  so  many 
several  heads,  were  united  into  one,  yet  could  he  not  make  such  a  law  as  the  law  in 
England  is  ;  because  by  many  successions  of  ages  it  hath  been  fined  and  refined  by  an 
infinite  number  of  grave  and  learned  men,  and  by  long  experience  growne  to  such  a 
perfection  for  the  government  of  this  realme,  as  the  old  rule  may  be  justly  verified  of  it; 
neminem  oportet  esse  sapientio  rem  egibus,  no  man  out  of  his  own  private  reason  ought 
to  be  wiser  than  the  law,  which  is  the  perfection  of  reason." 


PRELIMINARY  DISCOURSE.  clix 

other,  or  with  extrinsic  considerations  of  convenience,  or  where  op- 
posite suggestions  of  mere  convenience  or  inconvenience  arc  at  va- 
riance with  each  other,  that  different  minds  will  attain  to  very  in- 
consistent, or  even  opposite  conclusions. 

The  natural  tendency  of  a  system  of  unwritten  law  must  lie.  in 
process  of  time,  to  induce  an  inconvenient  degree  of  uncertainty 
arising  from  a  struggle  between  precedent  and  principle,  wherever 
they  differ  or  are  supposed  to  differ. 

To  overturn  precedents  by  applying  a  rule  of  artificial  policy  and 
convenience  inconsistent  with  them,  would  be  to  weaken  the  authori- 
ty of  precedent,  one  of  the  great  pillars  of  the  law  ;  to  adhere 
with  servility  to  precedents,  merely  as  such,  would  be  to  sacrifice  to 
mere  precedent,  those  general  principles  of  policy  and  convenience 
which  constitute  the  very  foundation  of  the  system. 

It  is,  however,  no  part  of  the  author's  intention,  on  the  present 
occasion,  to  pursue  these  remarks.  Enough  may  already  have  been 
said  on  the  subject,  to  excite  the  attention  of  the  student,  and  induce 
him  to  attend  to  the  operation  and  effect  of  the  common  law  princi- 
ples, maxims,  and  practice  on  this  branch  of  English  jurisprudence. 

In  some  instances,  and  those  important  ones,  it  will  be  found  that 
rules  have  been  established,  on  the  mere  foundation  of 
precedent,  as  contradistinguished  from  any  *considera-  [  *clx  ] 
tions  of  reason  or  convenience.  Thus,  so  lately  as  the 
year  1812,  the  important  question  (rc)  was  allowed  to  be  mooted, 
whether  the  remedy  by  a  civil  action  for  damages  ought  to  be  al- 
lowed in  respect  of  any  calumnious  expressions,  when  published  in 
writing,  which  would  not  have  been  actionable  had  they  been  merely 
spoken.  And  upon  that  occasion  the  court,  in  pronouncing  judg- 
ment, avowed  that  they  were  bound  by  mere  precedent  to  establish 
a  rule  which  was  not  surported  by  reason  or  convenience  (V). 

(n)  It  is  probable  that  the  extension  of  the  remedy  by  action  to  matters,  when  writ- 
ten, which,  when  spoken  would  not  have  been  actionable,  was  borrowed  from  the  civil 
law,  though  it  may  be  doubtful  at  what  precise  period  the  rule  was  imported  into  the 
law  of  England.  Notwithstanding  the  celebrated  Nolumus  Leges  Anglise  mutari,  the 
lawyers  of  former  times  had  it  in  their  power,  without  avowing  it,  to  introduce  and 
establish  many  of  the  rules  and  maxims,  and  even  much  of  the  practice  of  the  civil 
law.  Bracton,  professing  to  treat  of  the  law  of  England,  copies  largely  from  thc-Insti- 
tutes  and  Digest,  and  with  so  little  anxiety  to  disguise  the  matter,  as  even  to  speak  of 
the  Pralor's  authority  and  of  the  Actio  Legis  Jquilia  $  injuria  rum.  In  treating  of 
offences,  in  respect  of  which  the  offender  was  then  liable  in  the  B  Line  proceeding,  both  to 
a  criminal  and  civil  action,  he  says,  Facta  puniuntnr.  .  .  .  scri/itu,  ut  falsa  cl  libelli 
famosa.     Again,  he  says  ;  Actio  competit  ei  que  contumelian  vel  injur iam  passusest, 

(o)    Tlwrley  v.  Lord  Kerry,  4  Taunt.  o55,  and  sec  the  observation  of  Best,  C.  J.  in 


clx  PRELIMINARY  DISCOURSE. 

*clxi  ]  -  *Not\vithstanding  the  difficulties  which  are  incident  to 
the  common  law  system,  the  courts  have  endeavored  to 
protect  individuals  from  injurious  and  calumnious  imputations,  with- 
out, at  the  same  time,  encouraging  a  spirit  of  vexatious  litigation, 
and  fettering  the  ordinary  and  daily  intercourse  of  society  with  legal 
trammels.  A  remedy  is  afforded  against  all  malicious  attacks,  which 
immediately  tend  to- endanger  the  liberty  of  an  individual,  by  imput- 
ing the  commission  of  a  crime,  or  to  injure  him  in  his  profession, 
office,  trade,  or  means  of  livelihood.  On  the  other  hand,  no  one  is 
liable  to  an  action  for  damages,  so  long  as  he  has  published  that 
which  is  true,  nor  even  although  he  has  mistakenly  and  inadvertent- 
ly published  what  turns  out  to  be  false,  provided  his  error  was  an 
honest  one,  and  the  communication  was  fairly  warranted  by  the  oc- 
casion of  making  it. 

The  penal  provisions  of  the  law  are  founded  on  a  few  just  and 
simple  principles  of  criminal  jurisprudence,  by  no  means  peculiar  to 
this  branch  of  the  law.  Here,  as  in  other  instances,  freedom  of  ac- 
tion is  the  general  rule,  restraint  the  exception. 

As  the  law  inflicts  puni&'hment  on  any  one  who,  without  authority, 
imprisons  or  beats  another,  so  it  is  penal,  to  assault  or  attack  the 
character  or  credit  of  an  individual,  by  written  or  printed  libels, 

wantonly  and  maliciously  published  (p). 
[    *clxii  *Penal  liability,  in  this,  as  in  other  instances,  attaches 

only  to  an  abuse  of  liberty,  to  the  injury  of  the  public. 
A  man  may  publish  what  he  will  on  all  subjects  of  general  interest  ; 
but  if  he  wilfully  and  maliciously  publish  that  which  is  offensive  and 
pernicious,  he  commits  the  nuisance,  as  in  any  other  cases,  at  the 
just  peril  of  penal  censures. 

the  Archbishop  of  Tuam  v.  Robeson,  5  Bingh.  21.  This  branch  of  the  law  is  subject 
to  one  defect,  which  is  particularly  to  be  deprecated.  Whilst  such  ample  provision  is 
made  for  affording  a  remedy  by  action,  in  respect  of  every  slander  which  can  possibly 
affect  a  party  in  his  profession,  office,  or  means  of  living,  so  that  the  lowest  mechanic 
has  his  remedy  in  damages,  though  none  can  be  actually  proved,  against  any  one  who 
detracts  from  his  skill  or  ability,  and  no  one  can  falsely  say  that  a  publican  sells  sour 
beer  but  he  is  responsible,  yet  can  no  action  be  maintained  in  respect  of  any  oral  impu- 
tation on  the  character  or  conduct  of  the  most  virtuous  woman,  however  groundless  and 
malicious  in  its  origin,  or  destructive  in  its  consequences,  unless"  some  actual  temporal 
damage  can  he  proved. 

(p)  In  confirmation  of  the  general  position,  that  the  law  of  England,  in  respect  of 
libel,  is  but  an  application  of  the  general  principles  of  penal  jurisprudence  to  the  par- 
ticular subject  matter,  it  may  be  remarked,  that  the  only  general  and  the  most  impor- 
tant statute  relating  to  the  subject  was  passed  for  the  express  purpose  of  removing  an 
anomaly  which  had  been  introduced  with  respect  to  trials  on  prosecutions  for  libel,  and 
placing  them  on  the  same  footing  with  those  for  other  misdemeanors. 


PRELIMINARY  DISCOURSE.  clxii 

It  may  safely  be  asserted,  that  this  portion  of  English  jurispru- 
dence is  founded  on  just  and  equitable  principles  ;  that  it  is  charac- 
terized by  a  spirit  of  moderation  and  liberality  suited  to  the  temper 

of  the  people  and  genius  of  the  constitution,  which  has.  in  a 
measure,  confided  to  the  people  themselves,  in  their  capacity  of  ju- 
rors, the  guardianship  of  their  own  liberties,  and  thai  whilst  no  civi- 
lized nation  lias  ever  enjoyed  a  wider  range  of  intellectual  freedom, 
its  value  is  enhanced  by  the  reflection  that  the  enjoyment  of  the  privi- 
lege of  free  discussion  is  not  merely  consistent  with  public  safety,  but 
is  greatly  conducive  to  the  moral  and  political  interests  of  the  com- 
munity. 


• 


CHAPTER  I. 


The  provisions  of  the  law  of  England  in  respect  of  communica- 
tions, whether  they  be  oral  or  written  (a),  which  are  injurious  to 
individuals  or  to  society  at  large,  are  those : — 

1st.  Of  a  civil  nature,  which  give  a  remedy  in  damages  to  an  in- 
jured individual ;  or 

2dly.  Of  a  crimiual  nature,  which  are  devised  for  the  security 
of  the  public. 

The  subject  will  first  be  considered  in  reference  to  the  civil  rem- 
edy, concerning  which  it  will  be  convenient  to  inquire : — 

1st.  Under  what  limits  the  law  awards  a  remedy  in  damages  for 
such  an  injury. 

2d.  The  means  of  obtaining  that  remedy. 

In  general  an  action  is  maintainable  in  respect  of  every  wrong  or 
privation  of  a  legal  right. 

"For  it  would  be  nugatory  to  pronounce  that  any  man  *2 

had  a  right,  without  affording  him  the  means  of  enforcing 
or  defending  it. 

By  the  same  law,  every  man  has  a  right  not  only  to  his  life,  limbs, 
health,  and  personal  security,  but  also  to  his  good  name  and  reputa- 
tion ;  that  is,  he  lias  a  legal  claim  to  be  protected  against  false  and 
wilful  communications,  whether  oral  or  written,  made  to  his  preju- 
dice or  damage. 

The  law  which  recognizes  this  right  also  limits  its  extent. 

This  is  done  by  defining  what  communications  shall  be  regarded 
as  substantively  injurious,  and  therefore  actionable,  though  no  spe- 
cial damage  or  loss  can  be  shown. 

And  by  leaving  all  other  cases  to  the  operation  of  the  general 

(«)  It  is  necessary  to  observe,  that,  in  order  to  avoid  repetition,  under  the  term  writ. 
ten,  are  meant  to  be  included  all  communications  of  whatever  description,  by  writing, 
printing,  painting,  or  signs,  as  contradistinguished  from  those  which  are  merely  oral. 

Vol.  I.  10 


2  CIVIL  REMEDY. 

principle  of  law,  that  "  Where  a  man  has  a  temporal  loss  or  damage 
by  the  wrong  of  another,  he  shall  have  an  action  on  the  case  to  be 
repaired  in  damages"  (6). 

For  this  general  rule  embraces  all  cases,  where  any  special  dam- 
age is  immediately  occasioned  by  a  false  communication,  of  noxious 
tendency. 

It  may  be  collected,  from  the  definitions  of  text-writers  and  the 
decisions  of  our  court,  that,  in  general,  an  action  lies  to  recover 
damages  in  respect  of  any  false  and  malicious  communi- 
[    *3  cation,  'whether  oral  or  written,  to  the  damage  of  ano- 

ther in  law  or  in  fact. 

It  may,  perhaps,  be  more  properly  stated,  that  an  action  lies  in 
respect  of  any  wilful  communication,  oral  or  written,  to  the  damage 
of  another,  in  law  or  in  fact,  made  without  lawful  justification  or 
excuse. 

It  will  be  seen  that  these  descriptions  do  not  differ  in  substance, 
and  that  if  malice  be  used  as  a  descriptive  term,  it  must  be  under- 
stood of  malice  in  a  technical  and  artifical  sense,  as  merely  signify- 
ing the  absence  of  any  legal  justification  or  excuse  (c).  [1] 

(&)  1  Com.  Dig.  action  on  the  case  ;  Bac.  Ab.  tit.  Action,  B. 

(c)  See  the  objections  on  this  subject  in  the  Preliminary  Discourse.  The  ordinary 
legal  term  by  -which  an  injury  of  the  above  description  is  denoted,  is  Slander  ;  but  to 
this  term,  different  meanings  have  been  attached.  Its  origin  is  the  same  with  that  of 
the  word  Scandal,  being  derived  immediately  from  the  old  French  word  JEsclaunderie, 
and  mediately  from  the  Greek  ^xurduloi',  offendiculum  in  via  positum,  a  military  in- 
strument, used  for  the  annoying  of  cavalry,  by  wounding  the  feet  of  the  horses,  and 
that  again  from  Sxatp)  claudico.  There  is,  therefore,  nothing  in  the  origin  of  the  term, 
which  should  confine  its  figurative  application  to  oral,  as  contradistinguished  from  writ- 
ten communications,  although  it  has  frequently  been  used  in  the  former  limited  sense. 

Sir  W.  Blackstone,  in  his  enumeration,  (vol,  3.  p.  123,)  of  injuries,  states,  that  those 
affecting  a  man's  reputation  or  good  name,    are,  first  by   malicious,   scandalous,  and 

[1]  Hamilton  arguendo  in  the  famous  case  of  The  People  v.  Croswell,  3  Johns. 
Cas.  354,  after  observing  what  had  been  remarked  by  Lord  Camden,  that  he  had  not 
been  able  to  find  a  satisfactory  definition  of  a  libel,  said,  that  he  would  venture  to  sub- 
mit a  definition ;  and  accordingly  submitted  the  following:  A  libel  is  a  censorious  or 
ridiculing  writing,  picture  or  sign,  made  with  a  mischievous  and  malicious  intent  to- 
wards government,  magistrates  or  individuals.  This  definition  is  spoken  of  by  the 
court  in  Steele  v.  Souihwick,  9  Johns.  R.  215,  as  drawn  with  the  ulmoi-t  precision. 

Tilghman,  C.  J.  of  Pennsylvania ,  defines  a  libel  to  be  "  any  malicious  printed  slan- 
der which  tends  to  expose  a  man  to  ridicule,  contempt,  hatred  or  degradation  of  charac- 
ter." 5  Binney,  340. 

Parsons,  C.  J.  of  Massachusetts,  gives  the  following  definition;  "  A  libel  is  a  malicious 
publication,  expressed  either  in  printing  or  writing,  or  by  signs  and  pictures,  tending 
either  to  blacken  the  memory  of  one  dead,  or  the  reputation  of  one  who  is  alive,  and  ex- 
pose him  to  public  hatred,  contempt  and  ridicule." 


DIVISION  OF  THE  SUBJECT.  3 

*It  is,  however,  obvious,  that  whatever  be  the  brief,      [    *•! 
general,  and  comprehensive  form  of  words,  used  to  de- 
scribe the  outlines  of  such  an  injury,  a  discussion  of  its  different 

slanderous  words,  tending  to  his  damage  and  derogation  ;  as  if  a  man  maliciously  and 
falsely  utter  any  slander  or  false  tale  of  another,  &0.  An  1  the  same  learned  writer,  in 
subsequently  describing  the  injury  to  a  man's  reputation  by  means  of  a  libel,  omits  the 
term  slander  altogether. 

But  if  not  in  common  acceptation,  yet  in  legal  understanding  at  least,  the  word  is 
used  to  embrace  written  as  well  as  oral  defamation  :  thus,  in  Bacon's  Abridgment  (tit 
Slander,)  slander  is  (defined  to  be)  the  publishing  of  words,  in  writing  or  by  speaking, 
by  means  of  which  the  person  to  whom  they  relate  becomes  liable  to  suffer  some  corporal 
punishment,  or  to  sustain  some  damage. 

In  Comyns'  Digest,  (tit.  Action  upon  the  case  for  Defamatiou,  A.,)  it  is  laid  down, 
that '«  An  action  on  the  case  lies  for  defamation,  if  a  man  defame  another  by  slander- 
ous words."  And  afterwards  the  following  hypothetical  illustration  is  cited  as  ;m  au- 
thority : — "If  a  man,  by  letter,  write  slander  of  another  to  a  third  person."  1  And. 
119. 

Again,  in  Buller's  Nisi  Prius  3.  slander  is  defined  to  be  "  the  defaming  a  man  in  his 
reputation,  by  speaking  or  writing  words  which  affect  his  life,  office,  or  trade  ;  or  which 
tend  to  his  loss  of  preferment  in  marriage  or  service,  or  to  his  disinheritance,  or  which 
occasion  any  other  particular  damage." 

And,  therefore,  however  desirable  it  might  be  to  possess  some  legal  term,  which  should 
signify  oral  defamation  only,  yet  it  would  be  inconvenient  so  to  limit  the  term  slander 
itself,  in  opposition  to  the  authorities  to  the  contrary  ;  the  term  will,  therefore,  be  used 
in  this  treatise  in  its  general  sense,  as  comprehending  written  as  well  as  oral  defama- 
tion. 

It  seems  also  to  admit  of  some  doubt,  whether  the  term  slander  necessarily  imports 
the  falsity  of  the  matter  communicated.  According  to  Lord  Camden,  2  Wits.  301.  "  If 
the  words  be  true,  they  are  no  slander,  and  may  be  justified." 

Sir  W.  Blackstone,  in  his  description  of  the  injury,  (above  cited,)  uses  the  terms 
false  tale,  in  context  with,  or  rather  in  explanation  of  the  word  slander.  And,  in  a 
subsequent  passage,  he  observes,  that  "  If  the  defendant  be  able  to  justify  and  prove 
the  words  to  be  true,  no  action  will  lie,  even  though  special  damage  hath  ensued,  for 
then  it  is  no  slander  or  false  tale."     Bl.  Comm.  vol.  3.  p.  125. 

Again,  the  defamation  of  a  peer  is  ordinarily  termed  scandalum  magnatwn  ;  and  it 
seems  to  be  clear,  that  the  statutes  which  regard  this  offence  relate  to  false  reports  only; 
the  expressions  arc  false  news  or  tales,  horrible  aud  false  lies,  and  other  such  false 
things.     See  below,  tit.  Scandalum  .Magnatum. 

And  it  is  observable  that,  in  those  statutes,  the  word  slander  itself  is  used,  to  denote 
rather  the  scandal,  or  offence  occasioned  by  false  news  or  tales,  than  the  false  news  it- 
self ;  for  they  specify  false  news,  &c,  whereby  discord,  or  occasion  of  discord,  or  slander 
may  grow  between  the  king  and  his  people. 

The  term  itself,  therefore,  seems  to  imply  the  falsity  of  the  communication  [</  a]  ; 
however  this  may  be,  as  it  is  clear  in  point  of  law,  that  no  return  is  maintainable  "where 
the  communication  is  true,  it  is  of  little  importance  whether  the  term  false  be  used  as 

[a  a]  Lord  Ellenborough,  C.  J.,  Maitland  v.  Goldney,  2  East,  420,  observed,  "  In 
order  to  maintain  this  species  of  action  it  is  necessary  that  there  should  be  :  1.  malice  in 
the  defendant  ;  2.  an  injury  to  the  plaintiff ;  3.  that  the  words  should  be  untrue." 


4  CIVIL  REMEDY. 

branches  must  quickly  resolve  itself  into  a  consideration  ; — 
*5  ]        *lst.     Of  the  nature,  quality,  and  consequences  of  the 
matter  communicated. 

descriptive  of  the  right  to  damages,  or  the  truth  be  enumerated,  as  a  ground  of  legal 
justification,  the  result  and  effect  must  be  the  same.  It  may,  however,  according  to  le- 
gal analogy,  be  more  correct  to  consider  the  truth  of  a  communication  to  be  ground  of 
collateral  justification  or  excuse. 

A  man  has  either,  by  his  own  exertions,  acquired  a  good  character,  or,  at  all  events, 
the  law  will  presume  that  he  has  one  ;  to  the  enjoyment  of  this  he  has  the  same  natura' 
and  absolute  right  that  he  has  to  the  enjoyment  of  his  liberty,  health,  or  property  ;  and 
any  one  who  curtails  his  enjoyment  of  that  reputation  is  prima  facie,  as  much  a  wrong 
doer,  as  if  he  deprived  him  of  his  liberty  or  property.  It  is  true,  that  he  forfeits  his 
right  to  the  enjoyment  of  a  good  reputation  by  misconduct,  which  shows  that  he  no 
longer  deserves  it  ;  but  he  may  also  forfeit  his  right  to  liberty  by  misconduct — if,  for 
instance,  he  commits  a  felony,  any  one  has  a  right  to  arrest  him  ;  but,  in  the  one  in- 
stance, as  well  as  the  other,  in  the  case  of  privation  of  character,  as  well  as  of  liberty, 
the  right  to  take  away  the  reputation  or  liberty  of  another  is  founded  on  a  collateral 
fact,  namely  ;  his  misconduct,  and  depends  partly,  at  least,  upon  considerations  of  ex- 
ternal legal  policy  and  convenience.  A  man  may  have  acquired  a  good  character,  as 
well  as  a  good  fortune,  by  unfair  and  fraudulent  means,  yet,  being  possessed  of  it,  no 
stranger  has  a  right,  in  law  or  in  morals,  to  deprive  him  of  either,  unless  it  be  for  the 
attainment  of  some  legal  object,  under  the  sanction  of  a  law  founded  on  principles  of 
public  convenience  and  utility. 

The  law  of  England  recognizes  this  doctrine,  in  requiring  that  the  truth  of  the  impu- 
tation, if  it  be  relied  on  by  way  of  defence,  shall  be  pleaded  specially,  by  way  of  justifi- 
cation, (vide  infra,  tit.  Justification;)  just  as  a  defendant,  in  case  of  trespass  to  the 
person  or  property  of  another,  must,  in  his  defence,  plead  those  collateral  facts  special- 
ly, which  show  that  he  was  justified  in  what  he  did.  This  proves  that  the  law  regards 
such  a  justification  as  collateral.  Were  the  falsity  originally  essential  to  the  plaintiff's 
right  to  damages,  then,  although  the  proof  of  the  truth  would  be  incumbent  on  the  de- 
fendant, for  the  plaintiff  would  not  be  put  to  prove  a  negative,  more  especially  where 
the  law  presumed  the  affirmative,  yet  the  defendant  would  be  entitled  to  prove  the  truth 
of  the  charge  under  the  general  issue,  for  he  would  thereby  show  that  an  essential 
ingredient  in  the  plaintiff's  claim  to  recover  was  wanting,  and  that  he  could  not  have 
been  guilty  of  the  injury  imputed.  For  these  reasons,  it  may  be  convenient  to  treat 
the  truth  of  the  alleged  slander  as  a  collateral  ground  of  defence,  within  the  words 
without  lawful  justification  or  excuse. 

It  may,  however,  be  further  remarked,  that  if,  ex  vi  termini,  the  word  slander  im- 
ports a  false  charge,  written  slander  cannot  be  used  as  co-extensive  with  libel,  even  in 
the  application  of  the  latter  term  to  mere  personal  written  defamation ;  for  the  term 
libel  clearly  extends  to  such  written  defamation,  whether  it  be  true  or  false. 

Again,  the  term  libel,  (a  mere  diminutive  from  liber,)  has  by  no  means  been  used 
uniformly  and  constantly  to  convey  the  same  meaning,  even  among  lawyers,  in  its  ap- 
plication to  defamatory  and  Illegal  communications  [a  a.] 

In  Bacon's  Abridgement,  tit.  Libel,  it  is  defined  to  be  "  a  malicious  defamation,  ex- 
pressed either  in  printing  or  writing,  or  by  signs,  pictures,  &c,  tending  either  to  blacken 

[a  a)  The  term  Libel  in  the  English  law  is  no  doubt  immediately  derived  (however 
differing  from  it  in  many  essential  particulars,)  from  the  Libellus  Famosus  of  the 
Roman  Law. 


DIVISION  <)F  THE  SUBJECT.  5 

2ndly.     Of  the  act  of  communication. 

3rdly.  Of  the  intention  with  which  that  communication  was 
made. 

*4thly    The  occasion  and  circumstances  of  the  commu- 
nication, as  affording  matter  of  justification  or  excuse.  *C    ] 

First,  then,  as  to  the  nature,  quality,  and  consequences 
of  the  communication. 

*It  is,  in  the  first  place,  essential  to  the  claim  to  dam- 
ages, that   the  imputation  should  be   false  ;    for  as,  in  *7    ] 
point  of  natural  justice  and  equity,  no  one  can  possiMy 
have  any   claim  or  *title  to  a  false   character,  so  also     [    *8    ] 
would  it  be  contrary  to  the  principles  of  public  policy  and 
convenience,  to  permit  a  man  to  make  gain  of  *the  loss      [    *9 
of  that  reputation  which  he  had  forfeited  by  his  miscon- 
duct (d). 

But  as  the  law  always  presumes  in  favor  of  innocence,  and 
therefore  does  not  require  a  plantiff  to  prove  the  falsity  of  the  al- 
leged calumny,  and,  on  the  contrary,  imposes  the  burthen  of  proving 

the  memory  of  one  who  is  dead,  or  the  reputation  of  one  who  is  alive,  and  thereby  ex- 
posing him  to  public  hatred,  contempt  and  ridicule." 

In  Comyn's  Digest,  tit.  Libel,  A.,  a  lihel  is  defined  to  be  a  contumely  or  reproach 
published  to  the  defamation  of  the  government,  of  a  magistrate,  or  of  a  private  person, 
and  it  may  be  in  writing,  5  Co.  125,  b.  As  if  a  man  publishes  a  rhyme,  epigram,  or 
other  writing,  made  to  the  defimation  of  another;  or  it  may  be  without  writing,  (Salk. 
418,)  as  if  he  makes  a  picture  in  an  ignominious  manner,  or  any  ignominious  sign,  to 
the  reproach  of  another,  5  Co.  125   b. 

Hawkins,  in  his  Pleas  of  the  Crown,  treating  of  libel,  observes,  "  In  a  strict  sense 
it  (a  libel)  is  taken  for  a  malicious  defamation,  expressed  either  in  print  or  writing;  in 
a  larger  sense,  the  notion  of  libel  miy  be  applied  to  any  defamation  whatsoever,  ex- 
pressed either  by  signs  or  pictures,  as  by  affixing  up  a  gallows  at  a  man's  door,  or  by 
painting  him  in  a  shameful  and  ignominious  manner." 

Sir  W.  Bractetone,  in  treating  of  libels  as  the  means  of  civil  injury,  observes,  "  A 
second  way  of  affecting  a  man's  reputation  is  by  printed  or  written  libels,  pictures, 
signs  anil  the  like,  which  set  him  in  .n  odious  or  ridiculous  light,  and  thereby  diminish 
his  reputation."   (3  Comra.    125.) 

In  treating  of  the  subject  in  a  criminal  point  of  view,  he  says,  "  Of  a  nature  very 
similar  to  challenges  are  libels,  libellifamosi,  which,  taken  in  their  largest  and  most 
extensive  sense,  signify  any  writings,  pictures,  or  the  like,  of  an  immoral  or  illegal 
tendency." 

Of  the  definitions  above  referred  to,  none  but  those  of  Sir  W.  Blackstone  comprehend 
all  that  may  be  included  under  the  term  libel;  and  considering  the  offeuce  in  its  relation 
as  well  to  the  public  as  to  individuals,  libels  may  not  inconveniently  or  improperly  be 
defined  to  be  "any  writing,  pictures,  or  other  signs,  which  immediately  tend  to  injure 
the  character  of  an  individual,  or  to  occasion  mischief  to  the  public." 

(d)  See  Preliminary    Discourses,  page  xxxii. 


9  CIVIL  REMEDY. 

the  affirmative  on  the  defendant  ;  the  truth  of  the  supposed  slander 
is  in  effect,  a  ground  of  justification,  which  must  be  substantiated 
by  the  defendant,  consequently  the  decisions  on  this  point  will  be 
more  properly  considered  hereafter,  in  remarking  upon  those  justi- 
fications which  are  recognized  by  the  law. 

In  the  next  place,  the  consequence  of  the  slander  must  be  to  oc- 
casion some  injury  or  loss  to  the  plaintiff,  either  in  law  or  in  fact. 

As,  in  many  instances,  the  immediate  tendency  of  malicious  slan- 
der is,  to  produce  great  and  irreparable  mischief  to  the  party  whose 
character  is  assailed,  though  none  can  be  proved,  or  can  be  proved 
in  time,  so  as  to  save  the  sufferer  from  great  loss,  or  even  absolute 
ruin,  the  law,  in  particular  instances,  on  grounds  of  the  wisest  poli- 
cy, considers  the  very  publication  of  particular  slander 
[  *10  ]     *to  be  injurious,  and  to  confer  a  substantive  right   of  ac- 
tion ;  though  no  special  loss  or  damage  can  be  proved. 
In  the  first  place,  then,  in  what  cases  does  the  communication  amount 
to  a  damage  in  law  ?     Or,  in  other  words,  when  is  the  slander  ac- 
tionable without  proof  of  any  special  damage  ? 

The  general  rule  is,  that  "  where  the  natural  consequence  of  the 
words  is  a  damage  ;  as  if  they  import  a  charge  of  having  been  guilty 
of-a  crime  ;  or  of  having  a  contagious  distemper  ;  or  if  they  are  pre- 
judicial to  a  person  in  an  office  ;  or  to  a  person  of  a  profession  or 
trade,  they  are  in  themselves  actionable  ;  in  other  cases,  the  party 
who  brings  an  action  for  words,  must  show  the  damage  which  he  has 
received  from  them"  (e). 

It  appears,  that  an  action  may  be  maintained  without  proof  of 
special  damage  in  the  following  cases  : 

Where  a  person  is  charged  with  the  commission  of  a  crime. 
Where  an  infectious  disorder  is  imputed. 

Where  the  imputation  affects  him  in  his  office,  profession,  or  busi- 
ness. 

Where  the  matter  charged  tends  to  his  disinherison. 

Where  the  slander  is  propagated  by  printing,  writing,  pictures,  or 

signs. 
*11  ]         *In  cases  of  scandalum  magnatum. 

It  will  be  considered,  under  each  of  these  divisions,  by 
what  rules  the  extent  of  the  action  in  each  case  is  limited,  and  the 
reasons  upon  which  they  are  founded. 

1st.     Where  a  person  is  charged  with  the  commission  of  a  crime. 

(c)  6  Bac.  Ab.  205. 


CRIMINAL  CHARGE.  11 

Here  it  may  be  considered, 

1st.      What  must  be  the  nature  of  the  offence  imputed. 

2iidly.     In  ivhat  manner  and  terms  il  must  be  imputed. 

1st.     What  must  be  the  nature  of  the  offence  imputed. 

The  action  for  scandalous  words,  though  of  high  antiquity  (/), 
was  formerly  so  little  resorted  to,  that  between  the  first  and  fifth 
years  of  the  reign  of  Edward  the  Third,  not  more  than  three  instan- 
ces occurred  (g1). 

From  the  commencement  of  the  reign  of  Elizabeth,  such  actions, 
especially  for  words  containing  an  imputation  of  crime,  began  to 
multiply  with  great  rapidity,  a  circumstance  chiefly  attributable  to 
the  increasing  encouragement  which  they  met  with  in  our 
courts.  No  settled  *rulc,  ascertaining  their  limits,  seem-  *12  ] 
however  to  have  been  established  at  any  early  period, 
and  the  mass  of  conflicting  decisions  to  be  met  with  in  the  books, 
exhibits  convincing  marks  of  the  precarious  and  fluctuating  principles 
on  which  they  were  grounded. 

A  struggle  between  two  opposite  inconveniences,  seems  to  have 
created  this  wavering  in  the  minds  of  the  judges.  The  fear  of  en- 
couraging a  spirit  of  idle  and  vexatious  (/*)  litigation,  by  affording 
too  great  a  facility  to  this  species  of  action,  was  contrasted  with  the 
mischief  resulting  to  the  public  peace  from  refusing  legal  redress  to 
the  party  whose  reputation  had  been  slandered,  every  day's  experi- 
ence teaching  that  the  remedy,  denied  by  our  courts,  would  most 
surely  be  pursued  by  acts  of  personal  violence.  Accordingly  it  ap- 
pears, that  as  the  former  or  latter  of  these  considerations  preponder- 
ated, a  more  rigid  or  relaxed  rule  of  decision  was  adopted  by  the 
judges  (i). 

In  Edward's  case  (A:)  the  defendant  had  charged  the 
•plaintiff  with  having  attempted  to  burn  the  defendant's    |     *13 
house  ;  and  the  court  were  of  opinion  that  the  charge  was 
actionable,  assigning,  generally,  as  the  reason,  that tC  by  such  speech 
the  plaintiff's  good  name  is  impaired." 

{/)  By  the  st.  13  Ed.  1,  it  is  recited,  cases  in  the  reign  of  Elizabeth,  fifteen  con- 
that  in  cause  of  defamation,  it  hath  been  sist  of  actions  for  words,— a  proportion 
granted  already  that  it  shall  be  tried  in  a  somewhat  greater  than  that  of  one  jn  four- 
spiritual  court,  where  money  is  not  de-  teen.  If,  upon  the  average,  it  be  supposed 
mantled.  that  each  individual  case  of  the  two  classes 

(g)  According  to  Coke,  C.  J.,  3  Bulst.  occupied  the  same  time,  it  will  follow,  that 

167.  one  day  out  of  every  fourteen,  must  have 

(h)  6  Mod.  24.  been  devoted  by   the  court  to  this  fruitful 

(i)  Out  of  two  hundred  successive  cases,  subject  of  litigation. 

taken  at  random  in  Croke's  Reports  of  (/c)  Cro.  Eliz.  6. 


13  CIVIL  REMEDY— ACTIONABLE  WORDS. 

In  Santhope  v.  Blith  (/),  the  words  were,  "  M.  Stanhope  hath 
but  one  manor,  and  that  he  hath  gotten  by  swearing  and  forswear- 
ing ;"  and  Wray,  C.  J.  said,  "  that  though  slander  and  false  impu- 
tations are  to  be  suppressed,  because  many  times  '  a  verbis  ad  ver- 
bera  preventum  est;'  "  yet  "  he  said,  "  that  the  judges  had  resolved, 
that  actions  for  scandals  should  not  be  maintained  by  any  strained 
construction  or  argument,  nor  any  favor  given  to  support  them  ;  for 
as  much  as  in  these  days  they  more  abound  than  in  times  past,  and 
the  intemperance  and  malice  of  men  increase,  et  malitiis  hominum 
est  obviandum  :  and  in  our  books  actiones  pro  scandalis  sunt  raris- 
simce ;  and  such  as  are  brought  are  for  words  of  eminent  slanders 
and  of  great  import"  In  Smale  v.  Hammon  (m),  the  words  were, 
"  thou  wert  forsworn,  and  I  can  prove  it."  Upon  motion  in  arrest 
of  judgment,  "Williams,  J.  said,  "  this  rule  is  to  be  observed  as  touch- 
ing words,  which  are  actionable  ;  that  is  to  say,  where  the 

*14  ]      words  spoken  do  tend  to  the   infamy,  discredit,  or  *dis- 
grace  of  the  parly,  there  the  words  shall  be  actionable" 
And  the  ride  icas  affirmed  by  the  court. 

Yet  so  little  was  this  rule  regarded,  that  in  the  very  next  case 
which  occurred,  where  the  words  were  (n)  "  thou  wert  in  gaol  for 
robbing  such  an  one  on  the  highway,"  the  court  differed  in  opinion, 
and  Fenner,  J.  held,  that  if  one  saith  of  another,  "  thou  art  as  very 
a  thief  as  any  in  Warwick  Gaol,"  none  being  then  in  prison,  the 
words  would  not  be  actionable,  but  otherwise  had  a  felon  been  there 
at  the  time. 

In  Sir  Harbert  Crofts  v.  Brown  (o),the  words  were,  "Sir  H.  C. 
keepeth  men  to  rob  me.".  And  upon  giving  judgment  for  the  de- 
fendant, Coke,  C.  J.  said,  "  We  will  not  give  more  favor  unto  ac- 
tions on  the  case  for  words,  than  of  necessity  we  ought  to  do,  where 
the  words  are  not  apparently  scandalous,  these  actions  being  now  too 
frequent." 

In  the  early  part  of  the  reign  of  Queen    Anne,  Chief  Justice 

Holt  (ji)  observed,  that  "  it  was  not  worth  while  to  be   learned  on 

the   subject,  but  ivhenever  any  words  tended  to  take  away  a  man's 

reputation,  he  would  encourage  actions  for  them,  because 

*15  ]     so  doing  would  much  contribute  to  the  ^preservation  of 
the  peace"     And  in  another  report  (#)  of  the  same  case, 

(I)    4  Co.  15.  (p)  Baker  v.  Pierce,  Holt,  654;  6  Mod. 

(m)   1  Bulst.  40.  24,  S.  C. 

(rc)   Bulst. 40.  (g)  Lord  Raym.  959. 

(o)  3  Bulst.  167. 


CRIMINAL  CHARGE.  15 

he  is  stated  to  have  said,  "  I  remember  a  story,  told  by  Mr.  Justice 
Twisden,  of  a  man  that  had  brought  an  action  lor  Bcandalous  words 
spoken  of  him  ;  and  upon  a  motion  made  in  arrest  of  judgment,  the 
judgment  was  arrested,  and  the  plaintiff  being  in  tin,-  court  at  the 
time,  said,  that  if  he  had  thought  he  Bhould  not  have  recovered,  he 
would  have  cut  the  defendant's  throat." 

Yet  the  same  learned  judge,  in  a  case  (r)  Bomewhat  subsequent 
to  the  former,  is  reported  to  have  said,  that  "  to  make  words  action- 
able in  themselves,  it  is  necessary  to  charge  some  scandalous  crime 
by  (hem."  In  the  case  of  Ogden  and  Turner  (>),  the  defendant 
said  to  the  plaintiff,  a  thou  art  one  of  those  that  stole  my  Lord 
Shaftesbury's  deer."  The  court  held,  "that  words  to  be  of  them- 
selves actionable,  without  regard  to  the  person  or  foreign  help,  must 
either  endanger  the  party's  life,  or  subject  him  to  infamous  punish- 
ment, and  that  it  is  not  sufficient  that  the  party  may  be  fined  and 
imprisoned  :  for  that,  if  any  one  be  found  guilty  of  any  common 
trespass,  he  shall  be  fined  and  imprisoned,  and  yet,  that 
no  *one  will  assert  that  to  say  one  has  committed  a  ties-  *16  ] 
pass  will  bear  an  action,  or  that  at  least  the  tiling  charg- 
ed upon  the  plantiff  must  be  scandalous."  And  in  the  same  case  it 
was  held,  that  where  the  penalty  for  an  offence  by  a  statute  was  of 
a  pecuniary  nature,  an  imputation  of  such. an  offence  would  not  be 
actionable,  even  though  in  default  of  payment,  the  statute  should 
direct  the  offender  to  be  set  in  the  pillory  was  only  for  want  of  mon- 
ey, and  not  the  direct  penalty  given  by  the  statute. 

In  Button  v.  Hey  war  A  (7),  Fortescue  Justice  observed,  "It  was 
the  rule  of  Holt,  C.  J.  to  make  words  actionable  whenever  they 
sound  to  the  disreputation  of  the  person  of  whom  they  were  spoken  ; 
and  this  was  also  Hale's  and  Twisden' S  rule,  and  I  think  it  a  very 
good  rule." 

Such  is  the  nature  of  the  general  rules  upon  which  the  older  de- 
cisions were  founded. 

The  ground  of  an  action  for  word-  in  the  absence  of  specific  dam- 
age, is,  as  has  been  seen,  the  immediate  tend*  ncy  in  the  words  tin  ni- 
sei ves  to  produce  damage  to  the  person  of  whom  they  are  spoken,  in 
which  case,  presumption  supplies  the  place  of actual  proof '.-  The  im- 
mediate and  obvious  inconveniences  resulting  from  a 
*  charge  of  crime  are,  the  party's  degradation  in  society,  [  '17  ] 
and  his  exposure  to  criminal  liability.     In  the   former 

{>)    Walmesley  v.  Russel,  6  Mod,  200.  (/)  8  Mod.  21. 

(s)  6  Mod.  101;  2  Salk.  606;  Holt,  10. 


17  CIVIL  REMEDY— ACTIONABLE  WORDS. 

case,  the  presumption  is,  that  he  has  lost  the  benefit  of  intercourse 
With  society  ;  in  the  latter,  that  he  is  placed  in  jeopardy,  and  that 
the  suspicion  excited  by  the  report,  may  produce  a  temporary  depri- 
vation of  his  liberty  until  his  innocence  can  be  made  manifest  (w). 
Further  than  the  '  evil  of  a  temporary  privation,  the  presumption 
cannot  in  general  be  carried,  since  a  mere  false  report  cannot  of  it- 
self affect  the  party's  life  ;  and  if  the  report  be  true,  he  is  not,  as 
will  afterwards  be  seen,  entitled  to  an  action.     Cases  may  however 
occur,  where  the  detriment  may  be  much  more  serious  than  a  tem- 
porary loss  of  liberty.     It  is  very  possible  to  suppose,  for  instance, 
that  an  unfortunate  combination  of  circumstances  may  leave  the 
question  of  guilt  or  innocence,  in  a  capital  case,  so  nicely  poised  in 
the  mind  of  the  jury,  that  a  prejudice  instilled  by  a  previous  report, 
may  turn  the  scale  against  the  accused,  though  really  innocent ;  and 
this  apprehension  was  still  more  formidable,  when  the  law  required  a 
man's  jury  to  be  summoned  from  the  neighborhood,  a  place  likely 
to  be  the  most  strongly  infected  with  the  prejudice.     He 
[  *18  ]     *might  also  be  deprived,  by  means   of  such  slander,  of 
the"  benefit  of  general  evidence  as  to  his  character  (v). 
The  liberty  of  every  individual  is  considered  by  the  law  to  be  so 
valuable,  that  the  very  probability  of  its  suspension  is  held  sufficient 
to  enable  him  to  assert  his  innocence  in  court,  to  avert  the  evil  ap- 
prehended, and  to  recover  damages  for  the  injury  at  the  very  ear- 
liest opportunity. 

Since  then  the  grounds  of  action  are  to  be  found  in  one  or  both 
these  consequences,  namely,  the  degradation  of  the  party  in  society, 
or  his  liability  to  criminal  animadversion,  it  becomes  material  to  as- 
certain, by  reference  to  the  decided  cases,  under  what  restrictions 
one  or  both  of  these  can  constitute  the  foundation  of  such  an  action. 
First,  it  is  to  be  observed,  that  though  these  two  consequences  can- 
not be  completely  separated,  inasmuch  as  a  greater  or  less  degree 
of  discredit  must  necessarily  attach  to  every  violation  of  the  exist- 
ing law,  yet  that  the  party's  jeopardy,  in  a  legal  point  of  view, 
is  regarded  by  the  law  as  the  principal  ground  of  action  [1]. 
This   appears  from  the  general  scope  and  tendency  of  the  body 

(«)  The  being  of  bad  fame,  or  keeping  ally  taken  into  consideration  in  diminution 
company  with  persons  of  scandalous  repu-  of  punishment,  when  it  is  discretionary, 
tation,  was  formerly  a  reason  for  commit-  even  a  guilty  person  may  be  seriously  fo- 
ment    Haw.  b.  2,  c.  12,  p.  8,  9,  10,  11.  jured  by  false  reports  to  his  prejudice. 

(r)  And  as  previous   character    is  usu- 


[1]  See  note  [1,]  page  43,  infra. 


CRIMINAL  CHARGE.  18 

of  cases,  to  be  found  in  the  books  'relating  to  this  copi-        *19  ] 
ous  subject,  in  which,  though  the  discredit  to  the  party 
is  frequently  a  topic  of  discussion,  yet   the   main  question,  for  the 
most  part,  turns  upon  the  penal  consequences  of  the  offence,  and 
the  certainty  wherewith  it  is  charged. 

There  are,  however,  many  instances  to  be  found,  which  prove, 
that  criminal  liability  is  not  always  the  peculiar  and  exclusive  ground 
of  action,  and  in  which  a  remedy  has  been  given  on  account  of  im- 
putations, which  if  believed  and  even  proved,  could  no(  have  sub- 
jected the  plaintiff  to  any  future  penalty  : — fur  instan     . 

The  defendant  said,  "  Robert  Carpenter  (V)  was  in  Winch 
Gaol,  and  tried  for  his  life,  and   would  have  been  hanged  had  it  not 
been  for  Leggat,  for  breaking  open  the   granary  of  farmer  A.  and 
stealing  his  bacon." 

In  Gainford  v.  Take,  (x)  the  words  were — "  Thou  wast  in  Laun- 
ceston  Gaol  for  coining!"  The  plaintiff  replied,  "  lt'1  was  there, 
I  answered  it  well."  "  Yea,"  said  the  defendant,  "  you  were  burnt 
in  the  hand  for  it !" 

In  Boston  v.  Tatham  (#),  the  action  was  brought  for  saying  that 
the  plaintiff  was  a  thief,  and  had  stolen  the  defendant's 
gold.  It  was  contended,  *in  arrest  of  judgment,  that  [  *20  ] 
the  words  not  being  certain  as  to  time,  they  might  be 
taken  to  refer  to  the  time  of  Queen  Elizabeth,  since  which  there 
had  been  divers  general  pardons,  in  which  case  no  loss  could  happen 
from  the  scandal.  But  the  court  said,  that  it  is  a  great  slander,  to 
be  once  a  thief;  and  that  although  a  pardon  may  discharge  of  pun- 
ishment, yet  the  scandal  of  the  offence  remains. 

In  the  above  cases  of  Carpenter  v.  Tarrant  and  Gainford  v. 
Take,  (the  former  of  which  was  cited  by  Lord  Ellenborough,  0. 
J.  in  giving  judgment  in  a  late  case)  (c),  the  words  import,  that 
the  plaintiff  had  been  acquitted  in  the  one  case,  and  punished  in 
the  other;  neither  imputation,  therefore,  though    beli  aid 

have  exposed  either  of  the  plaintiffs  to  future  liability.     In  tl 
and  similar  instances,  it  is  Likewise  to  be  observed,  that  though  mo- 
tions were  made  in  arrest  of  judgment,  the  objection  relied  upon 
was,  that  the  words  contained  no  direct  charge  of  felony;  and  it 
was  not  insisted  upon  as  essential  to  the  action,  that  the  word-  must 

(w)   Carpenter  v.  Tarrant,  Rep.  Tern.         (y)  Cro.  J.  G'22.    Vid.  Sty.  4'J.    All.  35. 

Hard.  33(J;  see    also  Cuddington  v.   FPU-     1  Yin.  Ab.  416.  pi.  8. 
kins,  Hob.  81.  (2)  Roberts  v.  Camden,  9  East.   Rep. 

(1)  Cro.  Jac.  536.  63. 


20  CIVIL  REMEDY— ACTIONABLE  WORDS. 

impute  an  offence  which  may  expose  the  party  to  a  future  prosecu- 
tion, though  there  was  room  in  each  of  these  cases  for  making  the 
objection,  had  it  been  thought  available.  And  in  the  case  of  Bos- 
Ion  v.  Talham,  the  court  expressed  an  opinion  that  even 
[  *21  ]  allowing  *that  the  words  fixed  the  offence  to  a  period, 
since  which  the  liability  to  punishment  must  have  been 
discharged  by  a  general  pardon,  yet  that  the  words  were  actionable 
since  the  scandal  of  the  offence  remained.  And  although  in  these 
cases  the  principal  ground  upon  which  words  of  this  description 
are  held  to  be  actionable  seems  to  have  been  abandoned,  yet  the 
good  sense  of  the  decisions  is  obvious  ;  for  were  it  otherwise,  the 
slanderer  might  always  secure  impunity  by  cautiously  asserting 
that  the  party  slandered  had  already  suffered  the  punishment  ap- 
pertaining to  the  imputed  offence  [1]. 

[1]  The  principle  of  the  three  last  cited  cases  is  recognized  in  Van  Jlnkin  v.  West" 
fall,  14  Johns.  R.  283,  where  it  was  said  by  the  court  in  denying  a  new  trial  in  an  ac- 
tion of  Slander,  "  the  right  of  the  plaintiff  to  sustain  the  action,  does  not  depend  upon 
the  question  whether  he  is  liable  to  be  jiroseculed  and  punished  for  the  crime  charged 
against  him  :  as  when  the  stutule  of  limitations  has  run  against  the  criminal  prosecu- 
tion, it  is  still  slander  to  charge  the  party  with  the  offence."  The  same  principle  was 
acted.upon  in  Fowler  v.  Dowdncy,  2  Aloody  &  Rob.  119,  which  was  an  action  of  slan- 
der for  saying  of  the  plaintiff  "  he  is  a  returned  convict."  It  was  held  that  the  words 
were  actionable,  imputing  an  offence  punishable  by  transportation  ;  and  though  the 
punishment  had  been  suffered,  the  obloquy  remained.  It  seems  however  that  in  such  a 
case  the  defendant  may  justify,  Damn  v.  Clause,  5  Hill,  196.     See  also  5  Penn.  R.  372. 

Whether  words  are  actionable  in  themselves,  depends  not  always  upon  the  mede  of 
expression  adopted  by  the  speaker  ;  it  frequently  depends  upon  the  sense  in  which  they 
are  understood  by  the  hearers.  If  understood  to  impute  a  crime,  it  is  immaterial  how 
vague  and  doubtful  they  are.  Even  words,  innocent  on  their  face,  may  be  intended  and 
understood  in  a  calumnious  sense.  Words  accompanying  a  slanderous  charge,  showing 
the  impossibility  of  the  party  calumniated  being  subjected  to  an  indictment  or  to  an  in- 
famous punishment  for  the  crime  imputed,  may  be  a  mere  ruse  to  evade  the  vigilance  of 
the  law.  Whether  they  be  so  or  not,  is  a  proper  question  for  a  jury.  Management  of 
this  kind,  hiying  an  anchor  to  the  windward  for  a  future  day,  is  unavailing.  Hunt  V. 
Jllgur,  6  (,'arr.  &  Payne  245,  was  an  action  for  a  libel  copied  by  the  defendant  from  one 
newspaper  into  another,  with  the  sole  addition  of  the  word  Fudge.  The  cause  was  tried 
before  Lord  Lyndhurst,  who  submitted  to  the  jury  the  question  whether  it  was  the  ob- 
ject' of  the  defendant  by  the  addition  of  that  word  to  vindicate  the  character  of  the 
plaintiff,  or  whether  it  was  introduced  merely  for  the  purpose  of  creating  an  argument 
in  his  favor  in  case  proceedings  .should  subsequently  be  had  against  him  ;  and  instruct- 
ed them  that  if  the  word  was  added  only  for  the  latter  purpose,  it  would  not  take  away 
the  effect  of  the  libel.  If  on  trial  of  the  cause  the  defendant  can  show  that  the  party  to 
whom  the  crime  was  imputed,  had  in  fact  been  guilty  of  such  crime,  he  may  justify, 
although  at  the  time  of  the  speaking  of  the  words,  the  plaintiff  was  no  longer  liable  to 
indictment  or  punishment ;  otherwise  the  jury  will  be  warranted  to  conclude  that  the 
whole  of  what  was  said  by  the  defendant  is  false,  and  of  course  will  find  a  verdict  for 
the  plaintiff. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  21 

Supposing  it,  however,  to  l»e  perfectly  true,  that  in  some  instances 
the  presumption  of  prejudice  to  the  plaintiff  in  society  is  a  ground 
of  action,  independent  of  any  detriment  in  a  criminal  point  of  view, 
yet  it  appears  to  be  clearly  established,  that  "  No  charge  upon  the 
plaintiff,  however  foul,  will  be  actionable  without  special  damage, 
unless  it  be  of  an  offence  punishable  in  a  temporal  court  of  crimi- 
nal jurisdiction" 

Thus,  by  a  long  series  of  cases  it  has  been  decided, 
that  to  say  a  man  is  ''forsworn  (a)"  or  'that  he  has  22    J 

taken  a  false  oath,  generally,  and  without  reference  to 
some  judicial  proceeding,  is  not  actionable  ;  and  the  reason  is,  that 
in  the  latter  case  a  perjury  is  charged,  for  which,  wore  the  charge 
true,  the  party  would  be  liable  to  be  indicted  and  punished  :  in  the 
other,  no  more  than  a  breach  of  morality  is  imputed,  of  which  the 
law  does  not  take  cognizance  [1] . 

So,  to  accuse  another  of  having  secreted  (Z>)  a  will,  for  the  pur- 
pose of  defrauding  his  relations,  is  not  actionable  :  though  a  person, 
who  by  such  means  possesses  himself  of  the  testator'-  property,  would 
be  regarded  by  society  in  no  better  light  than  the  stealer  of  an  horse, 
or  the  picker  of  a  pocket.  Again,  where,  in  general,  bad  princi- 
ples and  vicious  propensities  are  imputed  to  the  plaintiff,  he  is  not 
entitled  to  any  compensation  in  damages  without  proof  of  a  specific 
loss  ;  though  a  person  known  to  possess  such  principles  and  propen- 
sities is  as  likely  to  be  despised  and  avoided  in  society  as  if  he  had 
actually  reduced  them  into  practice. 

The  defendant  (c)  said  of  the  plaintiff,  "  He  is  a  brabbler  and  a 
quarreller,  for  he  gave  his  champion  council  to  make  a  deed  of  gift 
of  his  goods  to  kill  me,  and  then  to  fly  out  of  the  country  ;  but  God 
preserved  me." 

"Sir  E.  Coke  (d~),  in  his  comment  upon  this  case,  says, 
"  Upon  great  consideration   and  advisement,  it  was  ad- 
judged that  the  words  in  the  principal  case  were  not  actionable  ;  for 
(he  adds)  the  purpose  or  intent  of  a  /nan.  without  act,  is  not  pun- 

(a)  Mo.  3G3.     Cro.  Eliz.  429  ;  Popham  (/»)  8  Salk.  827. 

210.     ()\v.    G2.   Cro.   Eliz.    185.609.720.  (c)   Eaton  v.  Mien,    1    Rep.    16.     Cro. 

788.  1  Fin.  Ab.  404.  1  Rol.  Ab.  40.  Com.  El».  684. 

Dig.  tit.  Action  on  the  case   for  defamation  (</)  4  Co.  10.  pi.  10  ;  and  see  Lord  El- 

D.  7.  G  Mod.  200.  lenUnvugh's  dictum,  4  Esp.  C.  219. 

[1]  See  decision  recognizing  this  principle,  Hopkins  v.  Becdle,  1  Caiues  347.  and 
note.  See  also  Stafford  v.  Green,  1  John-.  K.  505  ;  Ward  v.  Clark,  2  Id.  10  ;  Jfat- 
son  v.  Hampton,  2  Bibb's  R.  319.  and  Jacobs  v.  Fyler,  3  Hill,  672. 

Vol.  I.  11 


23  CRIMINAL  CHARGE. 

ishable  by  law.'''  And  this  rule  seems  in  all  times  to  have  been  ad- 
hered  to  with  more  consistency  than  is  generally  observable  in  de- 
cisions relating  to  this  branch  of  the  law,  though  many  cases  have 
been  deemed  to  fall  within  the  rule,  where  the  words  plainly  im- 
ported an  act  done. 

Thus,  in  the  very  case  of  Eaton  and  Allen  above  cited,  there 
was  more  than  a  mere  intention  to  procure  the  commission  of  a 
murder  ;  there  was  a  solicitation  to  commit  one,  which,  is  of  itself 
an  indictable  often ce. 

In  Leivknor  (e)  v.  Crucliley,  the  words  were,  "  He  and  another, 
knowing  that  J.  S.,  a  goldsmith,  did  carry  with  him  a  great  deal  of 
plate,  did  lie  in  wait  to  rob  him,  and  set  upon  him  by  the  highway ; 
but  he  raising  the  country,  they  did  fly  away,  and  Lewknor  lost  his 
horse,  and  they  both  were  driven  to  ride  away  upon  one  horse." 
It  was  contended  in  arrest  of  judgment,  that  by  the  plain- 
[  *24  ]  tiff's  own  showing,  no  *felony  was  charged  upon  him,  but 
nothing  more  than  a  mere  intent;  but  the  court  were  of 
opinion,  that  the  action  well  lay,  for  that  not  only  an  intent,  but  a 
fact  was  charged,  for  which  fine  and  imprisonment  were  due. 

The  cases  are  so  uniform  upon  this  point,  that  it  would  be  super- 
fluous to  cite  further  instances  to  show  that,  for  an  imputation  of 
evil  inclinations  or  principles,  no  action  lies  ;  unless,  indeed,  as  will 
afterwards  be  considered,  it  affect  the  plaintiff  in  some  particular 
character,  or  produce  special  damage. 

And  so  general  terms  of  abuse,  expressive  of  evil  inclinations  and 
corrupt  manners,  as  rogue  (/),  rascal,  scoundrel,  and  the  like,  are 
not  actionable,  for  they  do  not  impute  any  precise  and  definite  offence 
punishable  in  the  temporal  courts.  So  it  has  been  said,  that  the 
word  swindler  is  too  general  to  support  an  action,  but  Mr.  J.  Aston 
formerly  held  otherwise  Qg).  [1]. 

In  the  case  of  Jones  v.  Heme  (Ji),  C.  J.  Willes  said,  that  if  it 
were  now  res  inlegra  he  should  hold,  that  calling  a  man  a  rogue, 
or  a  woman  a  whore,  in  public  company,  was  actionable. 

It  seems  also  to  be  clearly  established,  that  words  imputing  an 
offence  (i),  merely  spiritual,  are  not  in  themselves  actionable  (k)  ; 

(e)  Cro.  Car.  140.  (h)  2  Wils.  87. 

(/  )  3  Bl.  C.  124.  1  Vin.  Ab.  417.  (t)  4  Co.  20. 

(g)  1  T.  R.  753.  (k)  Salk.  694.   12  Mod.  106. 

[1]  It  is  not  actionable  to  call  a  party  a  swindler.  See  Savile  v.  Jardine,  2  H. 
Black.  531;  Stevenson  v.  Hayden,  2  Mass.  R.  406;  and  Chase  v.  Whitlock,  3  Hill,  139. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  24 

and  the  reason  *assigned  for  this  is  that  the  person  Blan-  *25  ] 

dered  may,  for  such  words,  institute  a  suit  in  the  spiritual 
court;  and  that  if  an  action  were  to  be  entertained  in  a  temporal 
court,  the  party  would  be  twice  punished  forthesame  word-.  AVhat- 
ever  merit  this  reason  may  possess,  the  rale  itself  seems  to  be  fully 
established,  that  where  oral  defamation  concerns  matter  merely 
spiritual,  and  determinable  in  the  ecclesiastical  court,  as  if  it  impute 
adultery,  fornication,  or  heresy,  it  is  no  ground  of  action  at  com- 
mon law. 

The  power  of  the  spiritual  court  is,  however,  confined  to  the  in- 
fliction of  penanco  pro  salute  animce,  and  docs  not  extend  i  / I  to  the 
awarding  damages  or  amends  to  the  injured  party. 

In  the  particular  class  of  cases  where  acts  or  habits  of  incontin- 
ence have  been  imputed  to  females,  much  doubt  has  been  entertain- 
ed, whether  an  action  was  maintainable:  these,  however,  will  be 
hereafter  considered  under  a  more  appropriate  division  of  the  sub- 
ject, since  it  seems  both  from  actual  decision  and  analogy,  thai  such 
imputations  cannot  in  general  be  considered  actionable  as  charging 
a  temporal  crime,  («*)• 

In  Barnabas  (n)  v.   Traunter,  the  plaintiff  declared 
*that  he  was  a  parishioner  of  S.,  and  that  the  defendant  r26  | 

being-  vicar  there,  with  the  intent  to  scandalise  the  plain- 
tiff, and  to  draw  an  ill  opinion  of  him  among  his  ueighbors,  and  to 
exclude  him  from  the  church,  and  to  deprive  him  of  all  the  benefit 
of  hearing  divine  service  in  the  said  church  ;  in  the  time  of  divine 
service,  in  the  hearing  of  parishioners,  maliciously  pronounced  the 
plaintiff  excommunicated,  and  further  refused  to  celebrate  divine 
service  till  the  plaintiff  departed  out  of  the  church  :  upon  which  the 
plaintiff  was  compelled  to  go" out  of  the  church  ;  whereas  the  plain- 
tiff was  not  excommunicated  :  by  which  means  the  plaintiff  was 
scandalized  and  hindered  of  hearing  divine  service  for  a  long  time  : 
and  for  the  clearing  of  this  scandal  and  showing  his  innocency  there* 
in,  was  put  to  great  trouble  and  expense.  And  the  action  was  held 
to  be  maintainable,  though  the  plaintiff  did  not  show  that  any  man 
avoided  his  company,  or  foreborc  to  trade  or  deal  with  him,  or  that 
he  had  any  temporal  or  special  loss ;  for  it  was  said,  this  is -a  great 
and  malicious  scandal,  though  to  his  soul  and  though  spiritual. 

Though  scandal  to  the  soul,  was  the  reason  assigned  for  allowing 
the  plaintiff  to  recover  in  this  instance,  the  case  itself  can  scarcely 

(0  4  Co.  20.  Poph.  36. 

(m)  1  Vin.  Ab.  392.    Cro.  J.  323,  473.         (n)  1  Vin.  Ab.  396. 


26  CRIMINAL  CHARGE. 

be  considered  as  an  exception  to  the  general  rule  ;  for, 
[  '27  ]  though  a  charge  of  excommunication  supposes  *nothing 
more  than  a  spiritual  offence  or  contempt  upon  which  it 
is  grounded,  an  imputation  of  which  offence  would  not  be  actionable, 
and  although  the  deprivations  of  the  spiritual  benefits  complained 
of  cannot  be  considered  as  a  temporal  loss  ;  yet,  excommunication 
itself  is  attended  with  many  serious  temporal  inconveniences :  the 
object  of  it  is  excluded  from  the  society  of  all  Christians  ;  is  disa- 
bled to  do  any  act  that  is  required  to  be  done  by  one  that  is  probus 
et  legalis.homo  ;  he  cannot  serve  upon  juries  ;  cannot  be  a  witness 
in  any  court ;  and,  which  is  still  more  serious,  he  cannot  bring  an 
action,  real  or  personal,  to  recover  lands  or  money  due  to  him  (o). 
fie  is  further  liable  to  the  writ  (jp)  de  excommunicato  capiendo,  by 
which  the  sheriff  is  directed  to  take  the  offender  and  imprison  him 
in  the  county  gaol,  till  he  is  reconciled  to  the  church.  On  the 
ground  of  these  temporal  deprivations  under  which  a  person  excom- 
municated labors,  as  well  as  of  his  having  been  put  to  expense,  the 
above  case  may  perhaps  be  considered  as  authority,  consistently 
with  the  general  rule. 

The  rule  itself  is  liable  to  so  little  doubt  that  it  would  be  losing 
time'to  cite  cases  in  support  of  it,  otherwise  than  by  way' of  general 

reference  ((/),  — one  instance  may  suffice. 
[  "28  ]  *Thc  defendant  (r)  said   that  the  plaintiff  "  had  two 

bastards,  and  should  have  kept  them  ;"  by  reason  of 
which,  words  and  discord  arose  between  the  plaintiff  and  his  wife, 
and  they  were  likely  to  have  been  divorced.  After  verdict  it  was 
moved,  in  arrest  of  judgment,  that  these  words  were  not  actionable, 
because  he  doth  not  show  any  temporal  loss,  as  loss  of  marriage,  or 
the  like  ;  but  this  imagination  to  bo  divorced  is  not  to  any  purpose, 
and  it  is  but  a  causeless  fear  ;  and  of  that  opinion  was  all  the  court. 
But  where  the  words  impute  an  offence  for  which,  though  of 
spiritual  cognizance,  the  plaintiff  is  liable  to  punishment  in  a  tempo- 
ral court,  they  are  actionable. 

So  that  to  impute  incontinency  to  a  female  in  London  is  action- 
able, because  by  the  custom  of  the  city,  she  is  liable  to  be  carted 
for  her  offence  (s). 

So  the  calling  a  woman,  living  in  the  borough  of  Southwark, 

(o)  Litt.  201.  (r)   Cr.  J.  473. 

(p)  Fitz.  N.  B.  62.  (s)  12  Mod.  106.     Holt,  R.  40.     1  Vin. 

(q)  1  Via.  Ab.  392.  Ab.  395. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  28 

"whore,"  is  actionable  (/),  because  she  is  liable  to  public  carting 
by  prescription  [1]. 

So,  to  say  that  a  man  is  the  father  of  a  bastard,  is  not  actionable 
unless  it  be  alleged  of  a  bastard  likely  to  become  charge- 
able to  the  parish,  for  otherwise  he  is  not  liable  to  the  '-'•'    J 
penalties  of  the  statute  (w)  of  Elizabeth. 

So,  to  accuse  another  of  fornication  was  held  to  be  actionable, 
whilst  the  statute  making  it  a  temporal  offence  was  in  force  (y) 

Although  the  action  itself  be  limited  to  cases  where  the  offence 
charged  is  defined  by  law,  yet,  as  has  been  shown,  the  placing  the 
party  in  jeopardy  is  not  the  exclusive  ground  of  action,  it  may  be 
asked  then,  as  the  loss  in  some  cases  consists  solely  in  the  prejudice 
to  the  plaintiff's  character  in  society,  without  any  regard  to  hie  being 
endangered  in  law,  how  happens  it  that  the  extent  of  the  action 
is  confined  by  the  former  of  thes  e  circumstances,  and  is  not  co- 
extensive with  the  latter  ?  The  answer  seems  to  be,  that  though  the 
presumption  of  prejudice  to  the  plaintiff's  character  in  society  is 
frequently  the  most  serious  ground  of  complaint,  yet  that  such  pre- 
judice does  not  in  itself  furnish  a  rule  sufficiently  clear  to  determine 
the  extent  of  the  action.  Whence  it  becomes  necessary  to  adopt 
some  other  boundary,  which  though  not  exactly  commensurate  with 
the  injury  to  be  remedied,  may,  from  the  greater  certainty  and  facil- 
ity with  which  it  can  be  applied,  conduce  in  the  main  to  the  public 
good. 

*To  say  that  a  man  is  a  bad  father,  husband,  or  son,     [  *30  ] 
that  he  is  a  drunkard  or  liar,  or  charge  him  with  want  of 
veracity  in  a  single  instance,  must,  if  the  imputation  be  believed, 
induce  a  worse  opinion  to  be  entertained  of  him  ;  and  must  there- 
fore be  considered  as  a  real  detriment  to  an  innocent  party.     It" 

(0  Keb.  418.    Sid.  97.  1  Vin.  Ab.  395.        Cro.  Car.  436. 
(u)  Salter  V.  Brown,  1  Vin.   Ab.   397.        (»)  2  Sid. '21. 


[1]  Words  charging  a  married  woman  with  adultery  are  not  per  se  actionable;  so 
held  by  the  supreme  Court  of  New- York,  in  Buys  and  u-i/c  v.  Gillespie,  2  John-.  EL 
115;  nor  will  an  action  lie  for  calling  a  woman  a  common  proetitute,  lirooker  v.  Coffin, 
5  Johns.  R.  188.  In  South  Carolina,  words  charging  a  woman  with  want  -of  chastity 
are  held  not  to  be  actionable,  2  Nott  &  McCord  204;  and  so  in  Kk.nttckt,  Elliot  v. 
JliUbury,  2  Bibb  473;  whilst  in  New  Jersey  they  are  held  actionable  for  the  reason  un- 
availingly  urged  in  Buys  and  wife  v.  Gillespie,  viz.  that  there  is  no  ecclesiastical  court 
to  which  the  aggrieved  party  can  resort  for  redress.  Smith  v.  Minor,  1  Coxe's  EL  16. 
In  Connecticut,  words  imputing  incontinence  to  a  female  arc  made  actionable  by  stat- 
ute, 2  Coun.  R.  707;  and  so  in  Pennsylvania,  2  Binney,  34,  3  Serg.  &  Rawle,  2G1. 

ir 


30  CRIMINAL  CHARGE. 

then  discredit  alone  were  to  be  adopted  as  the  criterion,  the  action 
would  extend  to  every  degree  of  discredit ;  a  rule  highly  inex- 
pedient, both  on  account  of  the  endless  litigation  which  it  would 
produce,  and  of  the  other  incident  mischiefs  which  have  been  al- 
ready touched  upon;  but  if  it  be  admitted,  upon  the  principle  of 
expediency,  that  some  limitation  be  necessary,  perhaps  none  could 
be  adopted  more  convenient  than  the  one  recognized  by  the  law, 
which  confines  the  action  to  imputations  of  offences  punishable  in 
the  temporal  courts.  The  rule  itself  has  the  advantage  of  clearness 
and  certainty  in  its  operation,  and  is  nearly  co-extensive  with  our 
criminal  code  ;  and  it  is  to  be  remembered,  that  where  imputations 
do  not  fall  within  its  scope,  yet  any  specific  damage  accruing  to  the 
party  in  confidence  of  them,  will  entitle  him  to  a  remedy. 

The  action  then  is  confined  to  cases  where  an  offence  is  charged 
punishable  in  the  temporal  courts  ;  it  is  next  to  be  considered  whe- 
ther the  action  extends  to  all  or  to  what  portion  of  these. 
[  *31  ]  *There  may  be  some  impropriety  in  supposing  that  a 
violation  of  any  existing  law  is  not  in  some  degree  dis- 
creditable ;  for  although  the  long  catalogue  of  crimes,  defined  in 
our  penal  code,  exhibits  guilt  in  an  almost  infinite  variety  of  shades  ; 
yet  still  the  most  trivial  offender  cannot  in  strictness  be  deemed 
wholly  exempt  from  blame. 

In  many  instances,  however,  the  discredit  attaching  to  the  com- 
mission of  the  offence  charged,  is  so  minute,  that  it  can  scarcely  be 
considered  as  the  ground  of  action. 

In  this,  therefore,  and  many  other  similar  cases,  the  actionable 
quality  of  the  words  results  not  from  the  degree  of  discredit  attached 
to  the  party,  but  to  the  penal  nature  of  the  offence  imputed  («). 

The  defendant  said,  "  thou  hast  harbored  and  received 

[  *32  ]      thy  son  into  thy  house,  knowing  before,  *that  he  was  a 

seminary  priest  (&)."     It  was  held,  that  the  words  were 

scandalous  and  actionable,  the  offence  having  been  made  felony  by 

statute  (c).     Yet  it  can  scarcely  be  presumed,  that  in  this  case  the 

(a)  The  distinction  between  that -which  upon  himself  to  substitute  his  own judg- 
is  malum  prohibitum  and  malum  in  se  has  ment  in  the  place  of  that  of  the  supreme 
been  frequently  denied  by  great  authori-  legislative  authority  of  the  state.  Such  a 
ties.  It  seems  indeed  to  be  impossible  to  practice,  if  general,  would  obviously  be 
contend  that  any  wilful  violation  of  the  inexpedient,  and  therefore  immoral,  in- 
existing  law  is  not  more  or  less  immoral,  asmuch  as  it  would  inevitably  lead  to  fre- 

Every  legal  prohibition  must  be  presumed  quent  violations  of  the  existing  law. 

to  be  a  beneficial  one  to  society,  and  who-  (6)  Smith  v.  Flynt,  Cr.  J.  300. 

ever  voluntarily  offends  against  it,  takes  (c)  27  Eliz.  c.  2. 


CIVIL  REMEDY— ACTIONABLE  WORDS. 

imputation  could  seriously  injure  the  father's  character  in  society, 
and  consequently  the  remedy  was  given  because  the  words  en- 
dangered him  in  law. 

The  books  abound  with  cases  which  prove,  that  a  charge  of 
TREASON,  or  any  species  of  FELONY,  whether  it  existed  at  Common 
Law  or  was  so  constituted  by  statute,  has  always  been  considered  as 
actionable:  to  these  may  be  added  that  of  PEBJUBT,  which  in  its 
very  nature  tends  to  destroy  the  plaintiff's  credit  in  Bociety  :  the 
courts  have,  however,  gone  beyond  this,  and  imputations  of  many 
other  misdemeanors  have  given  rise  to  a  numerous  class  of  decisions. 

In  Stone  v.  Smalcombe  (//),  the  defendant  having  been  am  I 
under  a  warrant  made  upon  a  latitat,  said,  "  this  is  a  coun; 
warrant,  made  by  Mr.  Stone  (the  plaintiff;)  and  though  it  was 
alleged  for  the  defendant  in  arrest  of  judgment,  that  forging  a  war- 
rant was  not  a  forging  within  the  statute  of  Elizabeth,  the  court 
held,  that  the  words  were  actionable  [1]. 

So  in  many  cases  the  charging  a  mere  solicitation  or 
*attcmpt  to  commit  a  felony  has  been  held  to  be  action-         *33  ] 
able.     In  Lady  Cockaine's  case  (e),  the  words  were — 
"  my  Lady  Cockainc  did  offer  two  shillings  to  a  woman  with  child 
to  get  her  a  drink  to  kill  her  child,  because  it  was  gotten  by  J.  S., 
Sir  Thomas  Cockaine's  butler."     And  it  was  moved,  that  an  ac. 
tion  did  not  lie  for  the  words  ;  but  it  was  adjudged  for  the  plaintiff, 
for  by  them  it  was  said,  the  lady's  credit  is  impaired  ;  and,  if  true, 
there  was  cause  to  bind  Iter  to  her  good  behavior,  although  it  was 
not  said,  that  she  did  give  money,  or  that  any  hurt  was  done. 

So  in  Tibbott  v.  Haynes  (/),  the  defendant  said,  "Tibbott,  and 
one  Gough,  agreed  to  have  hired  a  man  to  kill  me,  and  that  Gfongh 
should  show  me  to  the  hired  man  to  kill  me."  Upon  motion  in 
arrest  of  judgment,  J.  Gawdy  was  of  opinion,  that  the  words  were 
not  actionable,  because  it  was  not  alleged  that  any  act  was  done 
by  the  plaintiff,  nor  any  thing  put  in  use  by  him,  but  only  a  com- 
munication between  him  and  Gough  ;  and  that  it  would  hav 
otherwise  had  the  defendant  said,  "  he  hired  a  man  to  kill  me." 
But  Wray  and  Fenner,  justices,  were  of  a  different  opinion, 
and   judgment   was   given  for  the    plaintiff.       In    Cardinal? I 

(d)  Cr.  J.  648.  (/)  Ibid.  191. 

(e)  Cro.  Eliz.  49.  (y)  4  Co.  16. 

[1]  In  Alexander  v.  Alexander,  9  Wendell,  141,  a  charge  that  the  plaintiff  had 
forged  the  defendant's  name  to  a  petition  presented  to  the  legislature  was  held  action- 
able, although  it  imputed  an  offence  of  no  higher  grade  than  a  misdemeanor. 


33  CRIMINAL  CHARGE. 

[  *34  ]  case,  "the  words  were, — "  If  I  had  consented  to  Mr. 
Cardinal,  J.  H.  had  not  been  alive." — And  the  plain- 
tiff had  judgment.  In  the  case  of  Eaton  v.  Allen  (Ji)  above 
cited,  the  words  were,  "He  is  a  brabbler  and  a  quarreller.  for  he 
gave  his  champion'  council  to  make  a  deed  of  gift  of  his  goods  to 
kill  me,  and  then  to  fly  out  of  the  country,  but  God  preserved  me :" 
and  though  the  former-  cases  were  cited,  judgment  was  arrested, 
and  the  reason'  given  in  the  report  in  Croke  is,  "  that  the  first 
words,  '  he  is  a  brabbler,  &c.'  are  not  actionable  ;  and  that  the  lat- 
ter words,  commencing  with  ' /or,'  did  not  contain  any  express  af- 
firmation." But  Lord  Coke  observes,  "  that  it  was  adjudged  in 
this  case  upon  great  consideration  and  advisement,  that  the  words 
were  not  actionable  because  the  purpose  and  intent  of  a  man,  with- 
out act,  is  not  punishable  by  law  ;"  this  reason  is,  however,  defec- 
tive, for  solicitation  is  in  itself  an  act ;  and  this  case  was  overruled 
in  the  subsequent  one  of  Lewknor  v.  Crutchly  (i). 

The  defendant  there  charged  the  plaintiff  with  having  "  set  upon 
a  goldsmith  in  the  highway  with  intent  to  rob  him."  It  was  con- 
tended in  arrest  of  judgment,  that  no  felony  was  charged,  but  a 
mere  misdemeanor  [1]  ;  and  the  case  of  Eaton  v.  Allen 
[  *35  ]  was  cited  ;  but  the  court  delivered  their  *opinions  seri- 
atim, that  the  action  lay,  and  said,  "  that  although  the 
defendant  charged  him  with  an  act  that  is  not  felony,  yet  he  chargeth 
him  not  only  with  the  intention,  but  with  a  fact,  which  is  as  near  to 
felony  as  may  be,  and  with  such  an  offence  as  is  more  than  intent 
only,  and  more  than  riot,  and  for  which  fine  and  imprisonment  are 
due."  And  Jones,  J.  cited  Wick's  case,  where  the  defendant  said, 
"  nine  persons  set  upon  me  to  have  robbed  me  and  you  (Wicks) 
was  one  of  them  ;  and  it  was  adjudged  that  the  action  lay. 

If  any  distinction  can  be  made  between  the  two  last  cases  (&),it 
consists  in  this  ;  that  in  the  former  there  was  a  solicitation  only,  to 
commit  felony ;  in  the  latter  there  was  an  overt  act  exercised  in 
pursuance  of  a  felonious  intention.     Such  a  distinction   is  at  all 

(/i)  4  Co.  16  Cro.  Eliz.  684.  (fe)  i.  e.  Eaton  v.  Allen,  and  Lewknor 

(i)  Cro.  Car.  140.  v.  Cruchley. 


[1]  In  Young  v.  Miller,  3  Hill,  21,  it  was  held  that  an  action  lies  for  words  im- 
puting a  misdemeanor  involving  moral  turpitude,  and  subjecting  the  party  to  an  indict- 
ment. The  words  were,  "  You  have  removed  my  land- mark."  The  removal  of  land- 
marks being  declared  by  statute  a  misdemeanor,  subject  to  fine  and  imprisonment  in  a 
county  jail.  See  also  Alexander  v.  Alexander,  9  Wendell,  141,  and  ante  page  29,  n.  [1] 


CIVIL  REMEDY— ACTIONABLE  WORDS.  35 

events  now  no  longer  available,  since  it  is  clear  that  a  solicitation 
to  commit  felony  constitutes  a  misdemeanor  (/). 

So  where  the  charge  is  of  a  misdemeanor  not  at  all  connected 
with  felony.  . 

During  an  election  of  members  O)  to  serve  in  parliament,  the 
defendant,  holding  up  money  in  his  hand,  said  of  the  plaintiff  who 
was  a  candidate,  "these  guineas  arc  Mr.  Ben  dish's  (the 
•plaintiff's)  money,  and  were  given  me  to  vote  for  him;  [  *36  ] 
he  has  bought  my  vote,  and  he  shall  have  it."  It  was 
contended,  in  arrest  of  judgment,  that  no  words  are  actionable  un- 
less they  subject  the  plaintiff  to  a  temporal  punishment,  and  that 
nothing  had  been  said  that  could  subject  the  plaintiff  to  an  indict- 
ment on  the  statute ;  but  Holt,  C.  J.  was  clearly  of  opinion,  that 
the  action  lay,  and  judgment  was  given  for  the  plaintiff.  It  is  to  be 
remarked,  that  bribery  was  an  offence  at  Common  Law  (»),  and 
punishable  by  indictment  or  information. 

Where  a  commission  had  been  awarded  (o)  out  of  Chancery,  to 
the  plaintiff  and  three  others,  with  the  assent  of  the  parties  to  a 
suit,  to  examine  witnesses,  and  to  hear  and  determine,  the  defend- 
ant, who  was  one  of  the  parties  (gaid  of  the  plaintiff),  "  Sir  George 
Moor  is  a  corrupt  man,  and  hath  taken  bribes  of  Richard  King  (the 
other  party  to  the  suit)  ;"  and  likewise  further  said,  "  Richard 
King  hath  set  Sir  George  Moor  on  horseback,  with  his  bribes,  to 
pervert  justice  and  equity."     Upon  motion  in  arrest  of  judgment, 
the  court  said,  "  that  the  plaintiff  having  the  King's  commission  to 
execute,  if  he  take  bribes  to  execute  it,  it  is  a  breach  of 
the  trust  reposed  *in  him,  and  is  so  great  an  offence,  that  [    '37 
he  may  be  indicted  and  fined  at  the  Common  Law ;"  and 
the  plaintiff  had  judgment. 

To  charge  a  person  with  having  given  a  sum  of  money  to  the  com- 
missioners to  be  made  purser  of  a  man  of  war,  was  held  actionable  ; 
such  an  offence  being  a  corruption  of  a  pnblic  trust,  and  a  crime 
both  in  the  commissioners  and  the  person  tempting  them,  and  the 
words  therefore  actionable,  as  imputing  a  criminal  charge  (y).  [1] 

(l)    2  East,  6.  (o)   Sir  George  Moor   v.    Foster,  Cro. 

(m)  Bendish  t.  Lindsay,  11  Mod.  104.      J.  66. 

(n)   Burr.  1335.  (/<)   Fiinly  v.  Stacey,  Burr.  2698. 

[1]  In  Lindsey  v.  Smith,  7  Johns.  R.  869,  it  WM  licM  that  words  oharging  a  justice 
of  the  peace  with  being  bribed  are  actionable;  and  in  Chipman  v.  Cook ,  'J  Tyler,  450, 
where  a  public  prosecutor  was  charged  with  corruption,  au  action  was  held  to  lie. 


37  CRIMINAL  CHARGE. 

In  the  case  of  Sir  William  Russel  v.  Ligon  (jq)  it  was  adjudged 
and  agreed,  that  an  action  lies  fcr  charging  the  plaintiff  with  being 
the  author  of  a  libel,  though  the  making  a  libel  is  not  an  offences 
which  concerns  life  or  member,  but  punishable  only  by  fine  and  by 
imprisonment  in  the  Star  Chamber,  or  upon  an  indictment  at  Com- 
mon Law.  In  the  principal  case,  it  seems,  however,  to  have  been 
averred  in  the  declaration,  that  the  plaintiff  was  a  justice  of  the 
peace  [2]. 

So  to  say,  a  person  keeps  a  bawdy  house,  is  actionable,  because 

the  offence  is  indictable  ;   [3]  and  though  it  has  been  held,  that  such 

words  are  not  actionable,  the  reason  on  which  the  judg- 

*38  ]  ment  was  given  is  bad,  for  it  was  assumed  (r),  that  *the 
offence  was  not  indictable  at  Common  Law. 

So  to  accuse  a  person  of  subornation  of  perjury  (5).  [4]. 

So  the  charging  another  with  receiving  goods,  knowing  them  to 
be  stolen,  was  actionable,  whilst  the  offence  remained  a  mere  misde- 
meanor, and  punishable  by  fine  and  imprisonment  at  Common  Law. 

For  though  it  was  held  in  the  case  of  Dawes  (V)  v.  Bolton,  that 
for  the  words  "  Thou  art  a  knave,  and  hast  received  stolen  swine  ; 
and  hast  received  a  stolen  cow  ;  and,  thou  knowest  they  were  stolen  !" 
no  action  lay.  Yet  the  ground  of  decision  was,  that  the  words  were 
to  be  considered  in  miliori  sensu;  and  that  it  might  be,  that  the 
defendant  meant  that  the  plaintiff  had  received  them  as  bailiff  or 
lord  of  a  manor,  who  had  liberty  to  have  waif's  and  felon's  goods; 
and  it  seems  to  have  been  allowed,  that,  had  a  guilty  knowledge 
been  intended,  the  words  would  have  been  actionable.  In  Cox  (u) 
v.  Humj>hreys,  the  defendant  said,  "Thy  boy  (the  plaintiff's  son) 
hath  cut  my  purse,  and  thou  hast  received  it  knowing  it ;  and  hast 
the  rings  and  money  that  were  there  in  thy  hand  !"     And 

*39  '  it  was  held,  that  the  words  were  not  actionable,  *because 
it  did  not  appear  that  a  felonious  taking  was  meant. 

And  it  seems  that  to  charge  a  brewer  with  selling  unwholesome 

(9)  1  Vin.    Ab.    423,   pi.    27.     1  Com.  Buls.  138. 

Dig.  tit.  Action  on  the  case  for  defamation.  (s)  Cro.  J.  158. 

8,  9.     1  Roll.  Ab.  46.  (t)   Cro.  Eliz.  888. 

(r)  Cro.  Eliz.  643,  sed  vid.  1  Roll.  44.  1  (m)   Cro.  Eliz.  889. 


[2]  In  Andreas   and  wife  v.  Koppenheafer ,  3  Serg.  &  Rawle,  255,  words   charging 
the  wife  with  being  the  author  of  a  libel,  were  held  actionable. 

[3]  Action  sustained  for  same  charge,  Martin  v.  Stilwell,  13  Johns.  R.  275. 
[4]  Action  sustained  for  same  charge,  Beers  v.  Strong,  Kirby's  R.  12. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  39 

beer  is  actionable,  since  the  Belling  such   beer  is  an  indictable  of- 
fence (x). 

In  Sir  Lionel  Walden  (y)  v.  Mitchell  the  defendant  .-aid,  that 
the  plaintiff  went  to  mass,  and  the   words   were   held   actionable 
since  by  the  statute  27  Eliz.  c.  4,  the  offender  was  liable  to  forfeit 
,£100,  and  to  be  imprisoned  for  a  year. 

So,  whilst  the  statutes  against  witchcraft  were  in  force,  it  was 
held,  that  to  say  "  Thou  art  a  witch  and  a  sorcerer,"  was  actiona- 
ble (~)  :  And  Gawdy,  J.  said,"  If  he  bewitches  men  bo  as  they  die, 
it  is  felony  ;  if  he  use-  witchcraft  in  any  other  way.  he  -hall  stand 
in  the  pillory;  so  that  is  a  slander  in  every  respect,  and  a  good 
cause  of  action." 

In  Mayne  v.  Digle  (a)  it  is  laid  down,  that  an  action  lies  for 
any  words  which  import  the  charge  of  a  crime  for  which  a  person 
may  be  indicted. 

From  these  instances  cited,  and  a  number  of  similar  ones  to  be 
met  with  in  the  reports,  it  seems  difficult  to  find  any  other 
limit  for  the  extent  of  the  action  than  that  laid  'down  in         '40 
the  last  case  ;  and  though  there  are  dicta  and  even  deci- 
sions to  the  contrary,  both  may,  perhaps,  be  considered  as  borne 
down  by  the  current  of  the  authorities  cited,  and  others,  in  which 
words  have  been  considered  actionable,  as'  charging  an  indictable 
offence. 

Thus  it  has  been  held,  that  no  action  lies  for  publishing  of  the 
plaintiff,  that  he  is  uregralor  (Z>)  ;  and  the  reason  given  is,  because 
the  offence  of  regrating,  is  not  punishable  by  loss  of  life  or  limb; 
but  this  decision  cannot  be  considered  as  law,  since  it  is  contradic- 
tory to  all  the  cases  last  cited. 

So  it  has  been  held,  that  for  the  words  "  Thou  art  a  common  bar- 
retor  (c-)  and  I  will  indict  thee  for  it  at  the  next  assizes,"  no  action 
lies. 

But  for  the  words,  "  Thou  maintainest  such  a  suit,"  it  was  -aid 
by  Popham,  C.  J.  (</),  that  an  action  had  been  held  maintainable 
upon  good  deliberation,  in  the  case  of  Sir  II.  Portman  \.  Stowell, 
maintainance  being  unlawful  and  odious. 

In  Ogden  (e~)  v.  Turner,  as  already  observed,  it  was  expressly 

(x)  1  Vin.  Ab.  477.  Freem.  25.    6  Bac.  {b)   ScoM  v.  Lee,  2  Show.  32. 

Ab.  210.  (c)  Cro.  Eliz.  171.    Tel.  90. 

(y)  2  Vent.  205.  (d)  1  Vin.  Ab  124,  pi.  84.  Mo.  428. 

(z)  Rogers  v.  Gravat,  Cro.  Eliz.  571.  (e)  Salk.  6%.    Holt.  1". 
(a)  Free.  46. 


40  CRIMINAL  CHARGE 

held  by  Holt,  C.  J.  that  to  render  words  actionable  it  is 
[  "  !  1  ]  not  sufficient  that  the  party  may  be  fined  and  imprison- 
ed for  the  offence.  For  that  if  any  one  be  found  guilty  of 
a  common  trespass,  he  shall  be  fined  and  imprisoned  ;  yet  no  one 
would  assert,  that  to  say  one  has  committed  a  trespass,  will  bear  an 
action.  This  dictum,  however,  was  materially  contradicted  by  what 
fell  from  Ld.  C..J.  He  Grey,  in  giving  judgment  in  the  case  of  On- 
slow (/)  v.  Home.  In  that  case  he  observed  "  As  far  as  I  can 
collect,  for  determinations  in  actions  for  words,  there  seem  to  be 
two  general  rules  whereby  courts  of  justice  have  governed  them- 
selves, in  order  to  determine  words  spoken  of  another  to  be  action- 
able. The  first  rule  is,  that  the  words  most  contain  an  express  im- 
putation of  some  crimes  liable  to  punishment — some  capital  offence 
or  other  infamous  crime  or  misdemeanor  ;■  and  the  charge  upon 
the  person  spoken  of  must  be  precise.  In  the  case  of  Ogden  and 
Turner,  the  words  are,  "  Thou  art  one  of  those  that  stole  my  Lord 
Shaftesbury's  deer  !  "  and  were  not  held  actionable  ;  for  though 
imprisonment  be  the  punishment  in  those  cases,  yet  per  Holt,  C.  J. 
"  1/  is  not  a  scandalous  punishment ;  a  man  may  be  fined  and  im- 
prisoned in  trespass  ;  for"  says  he  "  there  must  not  only  be  im- 
prisonment but  an  infamous  punishment."  I  think  Lord  Holt  car- 
ries it  to  far,  as  to  precision  ;  for  it  is  laid  down  in 

*42  ]  *Finch's  Law  (g-),  "  If  a  man  maliciously  utters  any  false 
slander,  to  the  endangering  one  in  law,  as  to  say,  '  He 
hath  reported  that  money  is  fallen,'  for  he  shall  be  punished  for 
such  report."  Here  is  the  case  of  a  crime,  and  the  punishment 
not  infamous  ;  and  yet  Finch  seems  to  say,  that  an  action  lies  for 
these  words. 

In  Holt  v.  Scholfield  (/t),  Mr.  J.  Lawrence  observed,  with  re- 
gard to  the  case  in  Bulstrode  (i),  "  I  think  Mr.  Justice  Williams 
goes  too  far  in  saying,  that  words  that  tend  to  the  infamy,  discredit, 
or  disgrace,  of  the  party,  are  actionable. 

The  most  correct  rule  is  laid  down  in  Onsloiv  v.  Home.  The 
ivords  must  contain  an  express  imputation  of  some  crime  liable  to 
punishment,  some  capital  offence,  or  other  infamous  crime  or  misde- 
meanor. There  is  also  a  case  in  Siderfin  (&),  which  is  in  direct 
contradiction  to  the  case  in  Bulstrode." 

In  many  of  the  cases  where  charges  of  crime  have  been  held  ac- 

(/)  3  Wils.  177.  (*)  i  Bu]s-  40- 

{rj)  185.  t  (*)  1  Sid.  48. 

(fc)  6  T.  R.  691. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  42 

tionable,  it  is  observable  thai   strew  lias  been  laid  upon  the  terms 
scandalous  and  infamous,  used  a    descriptive  either  of  the  crime 
charged  or  the  punishment  appertaining  to  it.     Although  this  afford 
some  reason  to  infer,  that  the  actionable  quality  does  not  extend  to 
all  charges  of  misdemeanor  for  which  fine  and  imprison- 
ment *may  be  inflicted,  yet  a  distinction  of  this  nature      [  '  \ ',   j 
seems  unwarranted  by  the  cases,  and  would  afford  :t  very 
dubious  rule,  the  terms  scandalous  and  infamous  being  of  themselves 
words  of  very  indefinite  import.     It  would  be  a  very  difficult 
to  ascertain  the  precise  point  in  the  scale  of  offences  where  infamy 
and  scandal  cease  to  attach. 

From  these  authorities,  perhaps,  it  may  be  inferred  generally, 
that,  to  impute  any  crime  or  misdemeanor  for  which  corporal  pun- 
ishment may  be  inflicted  in  a  temporal  court,  is  actionable  without 
proof  of  special  damage  [1] . 


[1]  The  rule  deduce  J  by  the  learned  author  of  the  treatise  from  the  cases  cited  by 
him  as  to  the  nature  of  the  otFenee  imputed,  to   renter  the  WOT  Is  .      .- 

been  restricted  to  more  limited  bounds  by  the  Supreme  Court  of  the  State  of  New- York. 
In  Brooke r  v.  Coffin,  5  Johns.  R.    188,  Sitxcer,  J.  observed,  "  Upon  the  full- 
sideration  we  are  inclined  to  adopt  this  as  the  safest  rule,  and,  one  which  as  we  think  is 
warranted  by  the  cases;  in  case  the  charge,  if  true,  will  subject  the  party  charged  to  an 
indictment  for  a  crime  involving  moral   turpitude,  or  subject  him  to  an  infamous  pun. 
ishment,  the  words  will  be  in  themselves  actionable."     This  rule  has  been  recognized  by 
that  court  in  the  subsequent  cases  of  Widrig  v.  Oyer  and  wife,  1&  Johia.    II.   124? 
Martin  v.  Stilwell,  13  Johns.  R.    275;    Van  .Yens  v.  Hamilton,  19  Johns.  R.  86 
Young  v.  Miller,  3  Hill  22,  and  is  adverted  to  and  approved  by  two  of  the  judges  of  the 
Supreme  Court  of  Pennsylvania,  in  Andreas   and   wife   v.    Kbppenheaft 
Rawle,  255,  and  by  the  Supreme  Court  of  JVero- Jersey  in  Ludlum  v.   McCucn,  1  Har- 
rison's (N.  J.)  R.  12. 

The  rule  of  the  Supreme  Court  of  New- York  is  fully  supported  by  the  cases  adverted 
to  in  the  text.    In  Walmsley  v.  Russell,  6  Mod.  200,  it  is  said  that  words  I 
able  in  themselves  must  charge  Borne  scandalous  erime ;  they  must  -  t.  im- 

pute t<>  the  party  an  offence  for   which    he  may  be   indict-  I,  Ma      it.  JD       . 
46,  and  see  Purdy  v.  Slacey,  Burr.  2698;  they  must 
mous punishment,  Ogdenv.  Turner,  2  Salk.  696.     In  Onslowv.  B 

it  is  -  iid  they  must  contain  an  express  imputation  of  some  crime  liable  to  punishment 

some  capital  offence  or  other  infa mous  crime  or  misdemeanor.    The  rule  ol 

Home,  is  approve!  by  Lawbxrob,  •'.  in  II  dl  v.  Scholefield,  6  T.  It.  694,  and  by  Tii.ch- 

man,  C.  J.  in  Shaffer  v.  Kintzer,  11  2;  McClurg  v.  Ron,  ■'<  Binney  21 

in  Andreas   and   wife   v.    Koppenheafer,  above  cited.     Bee   also  Elliot  v.  JHlsbury,  2 

Bibb  's  Kentucky  R.  473. 

In  Massachusetts,  C.  J.  Parker  refused  to  adopt  the  rule  of  Brooke r  v.  Coffin,  and 
instead  thereof,  laid  down  the  following;  "  an  accusation  is  actionable  whenever  an  of- 
fenco  is  charged  which  if  proved  may  sulject  the  party  to  a  punishment,  though  not 
ignominious,  and  which  brings  disgrace  upon  him."  See  Miller  v.  Parish,  b  l'ick 
385. 

Vol.  I.  12 


1:;  CRIMINAL  CHARGE. 

Where  the  penalty  for  an  offence  is  merely  pecuniary,  it  does  not 
appear  thai  an  action  will  lie  for  chargingit  ;  even  though  in  de- 
fault of  payment,  imprisonment  should  be  prescribed  by  the  statute, 
imprisonment  not  being  the  primary  and  immediate  punishment  for 

the  offence  (/)• 

Any  objection  as  to  the  extent  of  the  above  rule,  is  in  a  great 
measure  obviated  by  the  Statute  of  James  I.  which  where  the  dam- 
ages given  do  not  amount  to  forty  shillings,  limits  the  costs  to  the 
amount  of  the  damages  :  this  whole  provision  was  found  of  great 
use  in  confining  this  species  of  litigation,  (which  had  before  increas- 
ed to  a  prodigious  extent,)  within  narrower  and  more  convenient 

boundaries  [1] 
[  *44  ]  *2ndly.  In  what  manner  must  the  offence  be  imputed. 
Where  the  imputation  contains  a  direct  charge  of  crime 
in  precise  terms,  little  difficulty  can  occur  in  the  application  of  the 
foregoing  rule.  In  most  instances,  however,  an  unpremeditated  use 
of  words  of  doubtful  meaning,  or  an  intentional  selection  of  them, 
for  the  purpose  of  impunity,  have  occasioned  much  perplexity  and 
litigation.  In"  a  great  proportion  of  cases,  the  question  has  been, 
not  whether  a  charge  of  a  specific  offence  is  actionable  ?  but  whether 
in  fact,  any  offence  has  been  charged  by  the  words  ?  The  rule  of 
law  requires,  that  to  ground  an  action,  "  words  imputing  crime  must 
be  precise  ;"  but  it  is  by  no  means  essential,  that  they  shall  carry 
on  the  face  of  them  an  open  and  direct  imputation.  Such  a  rule,  it 
is  clear,  would  afford  no  security  against  calumny,  which  may  be  as 
effectually  conveyed  in  artful  allusions  to  collateral  matter,  and 
oblique  insinuations,  as  by  the  most  explicit  assertions. 

It  is,  however  incumbent  upon  the  party  who  complains  that  he 
has  suffered  from  an  imputation  of  crime,  to  show  with  certainty,  the 
injurious  nature  of  the  communication. 

In  order  to  establish  this  point,  two  circumstances  are  neces- 
sary : — 

1st.  That  the  words  or  signs  used  should   either  of 

*45     |  *themselves,  or  by  reference  to  circumstances,  be  capable 
of  the  offensive  meaning  attributed  to  them. 

2ndly.  That  the  defendant  did,  in  fact,  use  them  in  that  sense. 

(0  6  Mod.  104. 

[1]  In  New-  York,  unless  the  plaintiff  recovers  a  sura  exceeding  fifty  dollars  in  an 
action  for  slanderous  words  or  libel,  he  recovers  no  more  costs  than  damages.  2  R.  S. 
509,  §  6. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  15 

The  capability  of  the  words  or  Bigna  to  bear  a  particular  con- 
struction, must,  it  is  evident,  appear  upon  the  plaintiff's  statement 
of  his  case  ;  for  otherwise  it  would  not  judicially  appear  that  he  was 

entitled  to  recover.  That  the  defendant  did,  in  fact,  use  them  in 
that  sense,  is  a  matter  of  evidence  to  be  decided  upon  the  trial, 
which  will  be  a  subject  for  future  consideration.  It  may,  however, 
be  necessary  to  observe  here,  that  if  it  appear  from  the  word-  or 
signs  themselves,  or  from  circumstances,  that  they  arc  capable  of 
conveying;  the  particular  meaning  attributed  to  them  by  the  plaintiff, 
it  will,  after  verdict  for  the  plaintiff,  be  taken  for  granted,  that  the 
words  and  signs  were,  in  fact,  used  to  convey  BUCh  meaning 
that  is  a  matter  upon  which  the  jury  alone  can  decide,  and  which 
they  must  be  convinced  of  before  they  can  give  their  verdict  for  the 
plaintiff. 

Any  objection,  therefore,  to  the  words  or  signs  a-  stated  upon  the 
record,  is  grounded  upon  the  supposition  that  it  docs  not  sufficiently 
appear,  that  they  are  capable  of  an  actionable  meaning. 

*It  will  be  proper,  therefore,  next  to  consider  tin'  dif-  *46  ] 

ferent  kinds  of  ambiguities  which  may  arise,  not  only  in 
the  particular  case  where  some  crime  has  been  charged,  and  where 
doubt  most   frequently  occurs,  but  with  relation  to  cases  of  slander 
and  libel  in  general,  which  arc  governed  by  the  same  rule.-  of  con- 
struction. 

Words  or  signs  may  be  divided  into  three  classes  : — 

1st.  Those  which  bear  an  obvious  and  precise  meaning  on  the 
face  of  them  ;  as  if  A.  said  to  B.,  "  You  murdered  0." 

2ndly.  Those  which  on  the  lace  of  them  are  of  dubious  import, 
and  are  capable  either  of  a  .criminal  or  innocent  meaning;  a-  if  A. 
says  to  !>.,  "  You  were  the  death  of  0." 

3rdly.  Those  which  are  prima  facie  and  abstractedly  innocent, 
and  which  derive  their  offensive  quality  from  sOme  collateral  or  ex- 
trinsic circumstances;  as  if  A.  say  to  lb,  "You  did  not  murder 
C. !"  which  words,  from  the  ironical  manner  of  speaking  them,  may 
convey  to  the  hearers  as  unequivocal  a  charge  of  murder  as  the 
most  direct  imputation. 

With  respect  to  ambiguities  arising  nut  of  the  second  and  third 
classes,  it  is  now  the  settled  rule  of  law,  that  both  judges  and  juries 
shall  understand  words  in  that  sense  which  the  author 
intended  to  convey  to  the  minds  of  the  hearers^  'as  evir  *47 

dencedby  the  whole  circumstances  of  the  case.     That  it 
is  the  province  of  the  jury,  where  such  doubts  arise }  to  dt  cide,  whe- 


47  CRIMINAL  CHARGE. 

ther  the  words  were  used  maliciously,  and  with  a  view  to  defame, 
such  being  matter  of  fact  to  be  collected  from  all  concomitant  cir- 
cumstances :  and  for  the  court  to  determine,  whether  such  words, 
taken  in  the  malicious  sense  imputed  to  them,  can  cdone,  or  by  the 
aid  of  the  circumstances  stated  upon  the  record,  form  the  legal'basis 

of  an  action- 

It  was  long,  however,  before  this  rule,  rational  as  it  is,  and  sup- 
ported by  every  legal  analogy,  prevailed  in  actions  for  words;  and 
before  the  favorite  doctrine  of  construing  words  in  their  mildest 
sense,  in  direct  opposition  to  the  finding  of  the  jury,  was  finally 
abandoned  by  the  courts. 

A  very  few  specimens  of  cases  where  the  doctrine  of  the  benig- 
nior   sensus   was   allowed  to  prevail,  may  be    deemed    sufficient. 
"  Thou  art  as  arrant  a  thief  as  any  in  England  ;  for  thou  hast  bro- 
ken up  J.  S.'s  chest,  and  taken  away  40/."     After  verdict  for  the 
plaintiff,  the  court,  on  motion  in  arrest  of  judgment,  held,  that  the 
action  lay  not :  for,  he  showeth  not  that  he  stole  any  money,  or 
robbed  him  of  any  money ;  for  an  action  is  not  to  be  maintained  by 
intendment ;  but  by  express  words,  and  the  words  do  not  prove  any 
felony  committed  ;  for  the  money  may  be  taken  away, 
[  *48']      *and  the  chest  broken  open  in  the  mid-day  (m),  and  in 
the  presence  of  divers,  and  therefore  it  is  not  any  felony. 
The  defendant  said  (n),  "  Thou  art  a  lewd  fellow  ;  thou  didst  set 
upon  me  by  the  highway,  and  take  my  purse  from  me,  and  I  will  be 
sworn  to  it !"     After  judgment  for  the  plaintiff,  error  was  assigned, 
because  the  words  did  not  charge  the  plaintiff  with  felony,  nor  with 
any  felonious  taking  away ;  and  it  may  be,  he  took  away  the  purse 
in  jest,  or  for  some  other  cause ;  and  of  that  opinion  were  all  the 
Judges  and  Barons.     The  defendant  (o)  said,  "  Thou  art  a  thievish 
rogue,  and  hast  stolen  bars  of  iron  out  of  other  men's  windows  !" 
It  was  held,  that  the  action  lay  not ;  for  the  bars  of  iron  are  parcel 
of  the  freehold,  and  the  stealing  of  them  is  not  any  felony ;  and  it 
shall  not  be  intended  of  bars  lying  in  windows,  as  was  objected  that 
it  might  he  ;  for  it  shall  be  taken  in  the  best  sense  for  the  defendant. 
And  it  was  said,  that  it  was  adjudged  in  one  Bridge's  case,  that  for 
saying,  "  Thou  art  a  thief,  and  hast  stolen  my  corn  in  the  field,"  no 
action  lies  ;  for  it  shall  be  intended  standing  corn,  which  is  not  felo- 
ny ;  wherefore  it  was  adjudged  for  the  defendant. 

(m)   Forster  v.  Browning,  Cro.  J.  687.  (o)  Cro.  J.  204. 

(n)  Holland  v.  Sloner,  Cro.  J.  315. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  48 

*In  King  (/>)  v.  Bag-g.  In  error.  The  action  was  [  *■}'.'  ] 
for  the  words,  "Mr.  .J.  I),  was  robbed  of  C  !<>,  and  100 
marks'  worth  of  plate,  and  Alice  Bagg  |  the  plaintiff)  and  J.  8.  had 
it,  and  for  which  they  will  be  hanged  '."  And  after  verdict  and  judg- 
ment for  the  plaintiff,  ii  was  assigned  for  error,  that  an  action  lies  not 
for  these  words :  for  he  doth  not  say  that  Bhe  Btole  it,  and  it  may  be 
that  they  came  to  it  by  law  lid  mean-  :  and  although  he  saith  that 
they  will  be  hanged  for  it.  these  words  by  themselves  will  not  main- 
tain an  action,  and  they  do  not  enforce  the  first  words  ;  wherefore 
the  judgment  was  reversed. 

"Thou  Of)  dost  lead  a  life  in  manner  of  a  rogue,  I  doubt  not  bui 
to  see  thee  hanged  for  striking  Mr.  Sydman's  man  who  was  mur- 
dered !"  And  it  was  held  that  the  words  were  not  actionable,  for 
they  arc  not  positive  for  the  murder  of  Mr.  Sydman's  servant ;  he 
might  be  beaten  by  the  plaintiff,  and  murdered  by  another.  Actions 
of  slander  do  not  lie  upon  inference. 

It  seems  to  be  unnecessary  to  adduce  more  instances  of  the  preva- 
lence of  this  rule  of  construction  ;  the  following  may  be  adduced  in 
support  of  the  more  rational  doctrine  which  now  prevails. 

In  Ceely  (/•)  v.  Hoskins,  in  error.  The  words  *were,  [  *50 
"  Thou  art  forsworn  in  a  court  of  record,  and  that  I  will 
prove!"  It  was  contended,  after  verdict  for  the  plaintiff,  that  the 
action  would  not  lie,  because  he  did  not  say  in  what  court  of  record 
he  was  forsworn,  nor  that  he  was  forsworn  in  giving  any  evidence  to 
the  jury  ;  that  it  might  be  intended  only  that  he  was  forsworn,  not 
judicially,  but  in  ordinary  discourse  in  some  court  of  record  :  But 
(per  Croke)  "  Jones,  Berkeley,  and  myself,  held  clearly  that  the  ac- 
tion well  lay,  and  that  such  foreign  intendment  as  Maynard  ( for  the 
defendant)  pretended,  shall  not  be  conceived,  and  it  shall  be  taken 
that  he  spake  these  words  maliciously,  accusing  him  of  perjury  :  and 
for  a  false  oath  taken  judicially,  upon  judicial  proceedings  in  a  court 
of  record;  and  shall  be  taken  according  to  the  common  speech  and 
usual  intendment :  as  to  say  ;  such  a  one  is  a  murtherer,  without  say- 
ing whom  he  murdered,  or  when,  an  action  lies  ;  and  it  shall  not  be 
intended  that  he  was  a  murtherer  of  hares,  unless  such  foreign  in- 
tendment be  shown  or  discovered  in  pleading." 

In  Baal  (s)  v.  Baggerley,  the  words  were:  "Thou  hast  forged 
a  privy  seal  and  a  commission  !     Why  dost  thou  not  break  open  thy 

(p)  Cro.  J.  331.  (r)  Cro.  Car.  609. 

(q)  Cro.  J.  331.  Jenk.  302.  («)  Cro.  Car.  826. 

10* 


50  CRIMINAL  CHARGE. 

commission  ?"  And  after  verdict  for  the  plaintiff,  it  was 
[  *ol  ]  contended  for  the  defendant,  that  the  *words  were  not 
actionable  ;  for  it  did  not  say  the  king's  privy  seal,  nor 
any  writ  under  the  privy  seal;  also  he  said  not  what  commission  ; 
and  the  words  subsequent,  "  thy  commission,"  showed  that  he  meant 
a  commission  made  by  the  plaintiff  himself:  but  the  judges  having 
taken  time  to  consider- (Berkeley  doubting)  afterwards  delivered 
their  opinions — "  That  the  action  well  lies  ;  for  the  words  be  spoken 
maliciously  ;  and  being  alleged  in  the  declaration,  that  he  spake 
them  to  scandalize  him,  for  forging  of  the  privy  seal  and  commis- 
sion ;  and  being  found  guilty,  it  shall  be  intended  according  to  the 
vulgar  interpretation,  to  mean  the  king's  privy  seal,  the  counterfeit- 
ing whereof  is  treason  ;  and  a  commission  shall  be  intended  the 
king's  commission,  under  the  privy  seal ;"  and  Berkeley  agreed 
with  the  others. 

In   Somers  (0  v.  House,  the  words  were :  "  You  are  a  rogue, 
and  broke  open  a  house  at  Oxford  ;  and  your  grandfather  was  forced 
to  bring  ove*r  X80,  to  make  up  the  breach  !"     And  after  verdict 
for  the  plaintiff,  it  was  moved,  in  arrest  of  judgment ;  because,  rogue 
is  not  actionable  ;  and  breaking  open  the  house,  but  a  trespass  ;  and 
making  up  the  breach,  might  be  repairing  ;  but  the  court  seemed 
contrary :  for  upon  all  the  words  together,  a  man  who 
*52  ]      heard  *them  could  not  intend  other  than  a  felonious  break- 
ing of  the  house ;  and  though  in  the  old  boohs  the  rule 
was,  to  take  the  words  in  mitiori  sensu,  yet  per  Holt,  they  would 
take  the  words  in  a  common  sense   according  to  the  vulgar  intend- 
ment of  the  bystanders. 

In  Baker  (u)  v.  Peirce,  the  words  were  :  "  Baker  stole  my  box- 
wood, and  I  will  prove  it !"  After  verdict  for  the  plaintiff,  Serjeant 
Darnell  moved,  in  arrest  of  judgment,  that  these  words  are  not  ac- 
tionable ;  for  they  shall  be  taken  to  mean  wood  growing,  or  the  like, 
whereof  only  a  trespass  can  be  committed.  That  to  say,  you  are  a 
thief,  and  have  stolen  my  timber,  or  my  apples,  or  my  hops,  is  not 
actionable :  for  where  words  import  either  a  felony  or  a  trespass, 
they  shall  be  taken  in  the  mildest  sense,  unless  there  be  other  words 
to  determine  them  in  the  -worse  sense  :  as  to  say,  he  stole  my  tim- 
ber out  of  my  yard,  or  my  hops  in  a  bag ;  and  cited  Mason  (re)  v. 
Thompson, — "  I    charge  thee    with  felony  for  taking    forth  from 

(t)  Holt,  39.  („)  Lord  Ray.  959.     6  Mod.  234.  Holt,  654. 

(x)  Hutt.  38. 


CIVIL  REMEDY— ACTIONABLE  AVORDS.  52 

J.D.'s  pocket,  and  1  will  prove  it !"     The  words  were  held  not  to 
be  actionable,  because  it  should  nut  be   intended  to  mean  a  felony, 
not  being  directly  affirmed.     Hut  Holt,  C.  J.  and   the 
court  denied  that  case  to  be  law.  for  the  taking  ont  *of  a  *53  J 

man's  pocket  must  be  intended  a  felonious  takir 

For  the  plaintiff  it  was  contended,  that  the  words,  accordic 
common   parlance,  imported  a  thing  of  which   felony  might  be  com- 
mitted. 

And  afterwards  the  court  gave  judgment  fur  the  plaintiff;  Powell, 
J.  observing,  "  The  case  cited  by  my  brother  Darnell,  i-  bo,  but  the 
later  books  are  contrary;  and  1  wdl  stick  to  the  later  authoi 
being  grounded  on  so  much  reason.'' 

In  the  case  of   Burg-es   (y)  v.  Boucher,  the    court    o 
"  There  arc  several  cases  wherein  it  has  been  adjudged,  that  where 
words  may  be  taken  in  a  double   sense,  the  court,  after  a  verdict, 
will  always  construe  them  in  that  sense  which  may  support  the  ver- 
dict." 

The  plaintiff  brought  his  action  for  the  words,  "  He  (c)  is  a  clip- 
per and  a  coiner!"  After  a  verdict  for  the  plaintiff,  it  was  m 
in  arrest  of  judgment,  that  the  words  did  not  charge  the  plaintiff 
with  clipping  or  coining  money ;  for  they  may  be  applied  to  many 
other  things ;  but  judged  actionable,  for  it  must  be  intended  that 
he  meant  the  clipping  of  money,  and  in  that  sense  it  is  usually  un- 
derstood. 

In  Harrison  (a)  v.    Thomborough,  the  court  observ-  '."I  ] 

ed,  that,  "  Precedents  in  actions  for  words  are  not  of 
equal  authority  as  in  other  actions,  because  norma  hquendi  is  the 
rule  for  the  interpretation  of  words,  and  this  rule  is  different  in  one 
age  from  what  it  is  in  another.  The  words  which  an  hundred  years 
ago  did  not  import  a  slanderous  sense,  now  may,  and  vi 
In  this  kind  of  actions  lor  words,  which  are  not  of  very  great  an- 
tiquity, the  courts  did  at  first  as  much  as  they  could,  discountenance 
them,  and  that  for  a  wise  reason;  because  generally  brought  for 
contention  and  vexation, and  therefore,  where  tin-  words  were  capable 
of  two  constructions,  the  court  always  took  them  miliori  sensu. 
But,  latterly,  these  actions  have  been  more  countenanced  ;  "for  men's 
tongues  growing  more  virulent,  and  irreparable  damage  arising  from 
words,  it  has  been,  by  experience,  found,  that  unless  men  can  get 

(y)  8  Mod.  240.  (*)  8  Balk.  826.     2  Vent.   172.    'J  Lev. 51.     2  Sir  T.  Jo.  235. 

(a)  10  Mod.  196. 


54  CRIMINAL  CHARGE. 

satisfaction  by  law,  they  will  be  apt  to  take  it  themselves.  The  rule, 
therefore,  that  has  now  prevailed,  is,  that  words  are  to  be  taken  in 
that  sense  that  is  most  natural  and  obvious,  and  in  which  those  to 
whom  they  are  spoken  will  be  sure  to  understand  them. 

In  Burton  (b)  v.  Hay  ward  and  his  wife,  the  words 
[  *55  ]  spoken  by  the  wife  were,  "  George  Button  *(the  plain- 
tiff)  is  the  man  who  killed  my  husband  !"  her  first  hus- 
band being  dead.  After  verdict  for  the  plaintiff,  it  was  moved  in 
arrest  of  judgment,  that  these  words  are  not  actionable  for  the  un- 
certainty of  the  word  kilting,  for  it  might  be  justifiable,  or  in  his 
own  defence,  or  per  infortunium,  and  shall  not  be  presumed  felo- 
nious, and  so  made  actionable  by  intendment ;  for  it  is  a  maxim,  that 
words  shall  be  taken  in  mitiori  sensu.  But  it  was  said  by  Pratt,  C. 
J.  "  There  can  be  no  question  but  at  this  day  these  words  are  ac- 
tionable. In  former  times,  words  were  construed  in  mitiori  sensu, 
to  avoid  vexatious  actions,  which  were  then  too  frequent:  but  now, 
distinguenda  sunt  tempora  :  and  we  ought  to  expound  words  accord- 
ing to  their  general  signification,  to  prevent  scandals,  which  are 
at  present  too  frequent.  We  are  to  understand  vjords  in  the  same 
sense  as  the  hearers  understood  them ;  but  when  words  stand  indif- 
ferent, 'and  are  equally  liable  to  two  distinct  interpretations,  we 
ought  to  construe  them  in  mitiori  sensu ;  but  we  will  never  make 
any  exposition  against  the  plain  natural  import  of  the  ivords" 
"  The  word  killing  signifies  a  voluntary  and  unlawful  killing,  and  is 
actionable.  There  are  a  great  number  of  odd  cases  in  the  books ;" 
and  by  Eyre,  J.  "  the  words  are  to  be  taken  in  their  worst  sense, 
for  a  malicious  and  felonious  killing  ;"  and  by  Fortescue, 
[  *56  ]  J.  "  The  maxim  *for  expounding  words  in  mitiori  sensu, 
has  for  a  great  while  been  exploded ;  near  fifty  or  sixty 
years." 

It  was  observed  by  Lord  Mansfield,  in  the  King  (c)  v.  Home, 
"  It  is  the  duty  of  the  jury  to  construe  plain  words  and  clear  al- 
lusions, to  matters  of  universal  notoriety,  according  to  their  obvi- 
ous meaning,  and  as  every  body  else  who  reads  must  understand 
them  :  but  the  defendant  may  give  evidence  to  show  they  were  used 
on  the  occasion  in  question -in  a  different  or  qualified  sense.  If  no 
such  evidence  is  given,  the  natural  interpretation  of  the  words,  and 
the  obvious  meaning  to  every  man's  understanding,  must  prevail. 
"  If  courts  of  justice  were  bound  by  law  to  study  for  any  one 

(b)  8  Mod.  24.  (c)  1  Cowp.  672, 


CIVIL  REMEDY— ACTIONABLE  WORDS.  56 

possible  or  supposable  case,  or  sense,  in  which  the  words  used  might 
be  innocent,  such  a  singularity  of  understanding  might  screcu  an 
offender  from  punishment,  but  it  could  not  recall  the  words,  orreme- 
dy  the  injury.  It  would  be  strange  to  Bay,  and  more  bo  to  give  out 
as  the  law  of  the  hind,  that  a  man  may  be  allowed  to  defame  in  one 
sense,  and  defend  himself  in  another  :  such  adoctrine  would  indeed 
be  pregnant  with  the  nimia  subtilitas  which  my  Lord  Coke  so  justly 
reprobates." 

In  the  case  of  Peake  (d)  and    Oldham,  Lord  Mans- 
field *said,  "  After  verdict,  shall  the  court  be  guessing      [  *57  J 
and  inventing  a  mode  in  which  it  might  be  barely  possible 
for  these  words  to  have  been  spoken  by  the  defendant,  without  mean- 
ing to  charge  the  plaintiff  with  being  guilty  of  murder '."     Certainly 
not !    Where  it  is  clear  that  words  are  defectively  laid,  a  verdict  will 
not  cure  them;  but  where,  from  their  general  import,  they  appear 
to  have  been  spoken  with  a  view  to  defame  the  party,  tin.'  court 
ought  not  to  be  industrious  in  putting  a  construction  upon  them  dif- 
ferent from  what  they  bear  in  the  common  acceptation  and  meaning 
of  them.     I  am  furnished  with  a  case,  founded  in  strong  sense  and 
reason,  in  support  of  this  opinion.     The  name  of  it  is    Ward  v. 
Reynolds,  Pasch.  12  Ann.  B.  R.  and  it  is  as  follows:  The  defend- 
ant said  to  the  plaintiff,  '  I  know  you  very  well!   Bow  did  your 
husband  die?'     The  plaintiff  answered,  '  As  you  may,  if  it  please 
God  !'     The  defendant  replied,  '  No  ;  he  died  of  a  wound  you  gave 
him  !'     On  not  guilty,  there  was  a  verdict  for  the  plaintiff;  ami  on 
a  motion  in  arrest  of  judgment,  the  court  held  the  words  were  ac- 
tionable, because,  from  the  whole  frame  of  them,  they  were  spoken 
by  way  of  imputation;  and  Lord  C.  J.  Parker  said,  s  It  i-   very 
o.ld,  that  after  a  verdict,  a  court  of  justice  should  be  trying  whether 
there  may  not  be  a  possible  case  in  which  words  spoken 
by  way  of  scandal  might  not  be  *innocently  said ;  where-     [  *58  ] 
as,  if  that  were  in  truth  the  case,  the  defendant  might 
have  demurred,  or  the  verdict  would  have  been    otherwi 
here,  if  shown  to  be  innocently  spoken,  the  jury  might   have   found 
a  verdict  for  the  defendant ;  but  they  have  put  a  contrary  construc- 
tion  upon  the   word-   a-   laid,   and   have    found   that    the   defendant 
meant  a  charge  of  murder." 

In  the  King  (e)  v.  Watson  and  others,  Mr.  Justice  Puller  observ- 
ed, "Upon  occasions  of  this  sort,  I  have  never  adopted  any  other 

(d)  Cowp.'  277.  (c)  2  T.  R.  206. 


58  CRIMINAL  CHARGE. 

rule  than  that  frequently  stated  by  Lord  Mansfield  to  juries,  desiring 
them  to  read  the  paper  stated  to  be  a  libel,  as  men  of  common  un- 
derstanding, and  say,  whether,  in  their  minds,  it  conveys  the  sense 
imputed/' 

In  Woolnoth  (/)  v.  Meadows,  it  was  observed  by  Le  Blanc,  J. 
"  That  (after  a  verdict  for  the  plaintiff,)  it  is  not  sufficient  to  show, 
by  argument,  that  the  words  will  admit  some  other  meaning  ;  but 
the  court  must  understand  them  as  all  mankind  would  understand 
them  :  and  we  cannot  understand  them  differently  in  court  from 
what  they  would  do  out  of  court. 

In  Roberts  (g-)  V.  Cambden,  which  was  an  action  for  words  alleg- 
ed by  the  plaintiff  to  contain  an  imputation  of  perjury. 
[  *59  ]  After  a  verdict  for  *the  plaintiff,  on  a  motion  in  arrest 
of  judgment,  on  the  ground  that  the  words  did  not  im- 
pute the  crime  with  sufficient  certainty,  Lord  Ellenborough,  C.  J. 
in  delivering  judgment,  observed,  "  The  question  simply  is — Wheth- 
er the  words  amount  to  such  a  charge  ?  that  is,  whether  they  are 
calculated  to  convey  to  the  mind  of  an  ordinary  hearer,  an  imputa- 
tion on  the  plaintiff  of  the  crime  of  perjury..  The  rule  which  at 
one  time  prevailed,  that  the  words  are  to  be  understood  in  mitiori 
sensu,  has  been  long  ago  superseded  ;  and  words  are  now  construed 
by  courts,  as  they  always  ought  to  have  been,  in  the  plain  and  popu- 
lar sense  in  which  the  rest  of  the  world  naturally  understand  them." 
[1].  And  in  concluding,  the  same  learned  judge  observed,  that, 
"without  adverting  to  the  long  bead-roll  of  conflicting  cases  which 
have  been  cited  on  both  sides  in  the  course  of  this  argument,  it  is 
sufficient  to  say,  that  these  words,  fairly  and  naturally  construed, 
appear  to  us  to  have  been  meant,  and  to  be  calculated  to  convey  the 
imputation  of  perjury  actually  committed  by  the  person  of  whom 
they  are  spoken,  and  that,  therefore,  the  rule  for  arresting  the  judg- 
ment must  be  discharged." 

From  these  cases,  containing  the  opinions  of  some  of  the  most 

enlightened  judges  of  their  own  or  any  times,  it  may  be  collected — 

1st.  That  where  words  are  capable  of  two  construc- 

[    *60    ]    tions,  *in  what  sense  they  were  meant  is  a  matter  of  fact 

to  be  decided  by-  the  jury  [2]. 

(/ )  5  East,  4G3.  (g)  9  East,  96. 

[1]  See  Damarestv.  Haring,6  Cowen  37,  and  Walton  t.  Singleton,  7  Serg.  and 
Eawle,  451. 

[2]  See  Van  Vechten  v.  Hopkins,  5  Johns.  R.  221 ;  Dexter  v.  Taber,  12  Id.  240; 
McKinhj  v.  Rub,  20  Id.  356;  Gorham  v.  Ives,  2  Wendell,  534;  Gibson  v.  Williams. 
4  Wendell,  320. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  GO 

2ndly.  That  they  arc  to  be  guided  in  forming  their  opinion  by  the 
impression  which  the  words  or  Bigna  used  were  calculated  to  make 
on  the  minds  of  those  who  heard  or  saw  them,  as  collected  from  the 
whole  of  the  circumstances. 

8dly.  That  such  words  or  signs  will,  after  a  verdict  for  the  plain 
tiff,  be  considered  by  the  courts  to  have  been  used  in  their  worst 
sense. 

With  respect  to  words,  which  apparently  are  harmless,  and  which 
derive  their  offensive  meaning,  wholly  from  extrinisic  circumstances, 
the  preceding  observations  are  applicable:  the  use  of  Buch  words 
and  signs  as  do  in  effect  injure  the  reputation  of  an  individual,  are 
as  much  within  the  mischief  as  the  most  open  charges:  the  griev- 
ance is,  the  loss  of  character ;  and  by  what  means  the  wrong  is  effect- 
ed is  perfectly  immaterial,  either  as  to  the  suffering  of  the  party,  or 
the  policy  of  the  law  providing  him  a  remedy. 

The  (//)  defendant  wrote  a  pamphlet,  called  v-  Advice  to  the  Lord 
Keeper,  by  a  Country  Parson  ;"  wherein  he  would  have  him  love  the 
church  as  well  as  the  Bishop  of  Salisbury — manage  as  well  as  Lord 
Haversham — be  brave  as  another  lord  ;  and  so  gave  every  lord  a 
character,  ironically  ;  and  so  it  was  set  forth  in  the  infor- 
mation, *and  the  jury  found  him  guilty.     Upon  motion  in    |     'ill 
arrest  of  judgment,  it  was  shown  for  cause,  to  arrest  judg- 
ment, that  there  was  no  cause  to  charge  the   defendant,  because  he 
said  no  ill  thing  of  any  person  ;  and  all  he  said  was  good  of  them. 
But  to  this  it  was  answered,  and  resolved  by  the  court,  that  this  was 
laid  to  be  ironical ;  and  whether  it  was  so  or  not,  the  jury  vcre 
judges:  they  found  it  so.     And  that  if  this  were  not  a  crime,  the 
defendant  might,  by  contraries,  libel  any  person  [1]. 

Having  thus  inquired  what  general  rules  of  construction  have 
been  adopted  by  the  courts — their  application  to  the  class  of  cases 
where  crime  is  imputed,  and  the  degree  of  certainty  and  particulari- 
ty requisite  to  render  such  charges  actionable,  will  next  be  consi- 
dered. 

The  charge,  to  be  actionable,  must  in  general,  as  already  stated, 
impute  to  the  plaintiff  an  act  of  a  criminal naturt . 

There  are,  however,  some  exceptions  to  this  rule  :  a-  where  trea- 

(/.)  Holt,  11.  426. 

[1]  See  Andrews  v.  JVoodmanse,  45  Wendell,  232,  recognizing  this  principle. 
See  also,  Gibson  v.  Williams,  4.  Id.  320;  W'oolnolh  v.  .Meadows,  5  East.  4G3:  and 
Rex  v.  Home,  2  Cowp.  683. 


61  CRIMINAL  CHARGE. 

son  is  imputed :  one  species  of  which  offence  consists  in  the  com- 
passing  and  imagining  the  death  of  the  king;  which  words  signify- 
nothing  more  than  the  purposed   design  of  the  mind,  and  not  the 

carrying  such  design  into  effect  (i). 
[    *62    ]        *In  the  case  of  Sir  John  Sydenham  (&)  v.  Man,  the 
words  were,  "  If  Sir  J.  S.  might  have  his  will,  he  would  kill 
the  king !"  and  they  were  held  to  be  actionable,  although  they  refer- 
red to  the  will  only  ;  since  it  is  a  great  offence  to  have  such  a  will. 

So  where  the  party  is  charged  with  misprision  (7)  of  felony ;  as 
where  the  defendant  said,  "  He  (m)  knew  of  the  murder  of  L.,  and 
did  not  reveal  it  till  long  after  it  came  to  his  knowledge." 

In  other  cases  it  must  appear, 

I.  That  some  act  was  imputed  by  the  defendant. 

II.  That  such  act  is  of  a  criminal  nature. 

III.  That  it  was  meant  to  be  imputed  to  the  plaintiff. 
I.  That  some  act  was  imputed  by  the  defendant. 

The  imputation  of  an  act  may  be  inferred, 

1st.  Although  the  terms  of  the  communication  be  indirect. 

2dly.  Although  the  act  imputed  be,  in  legal  strictness,  impossible. 

1st.  Where  the  terms  of  the  communication  are  indirect.  It  may 
be  laid  down  as  a  general  rule,  that  wherever  words  are 

*63  |  used,  calculated  to  impress  *upon  the  minds  of  the  hear- 
ers a  suspicion  of  the  plaintiff's  having  committed  a  crim- 
inal act,  such  an  inference  may  and  ought  to  be  drawn,  whatever 
form  of  expression  may  have  been  adopted.  And  although  such 
forms  of  expression  may  be  reduced  under  general  heads,  and  ex- 
amples cited  under  each  to  illustrate  this  rule,  yet,  contradictory 
and  inconsistent  as  many  of  the  cases  are,  a  reference  to  them  can- 
not be  considered  as  of  essential  importance  ;  the  rule  itself  being 
so  well  established,  that  no  case  in  contradiction  to  it  can  now  be 
considered  as  a  precedent. 

It  may,  however,  be  deemed  proper  to  select  a  few  instances  of 
cases  falling  under  each  division. 

Where  the  terms  of  the  communication  are  indirect,  the  imputa- 
tion of  an  act  committed  may  be  inferred,  where  the  defendant  ex- 
presses a  suspicion  or  opinion,  or  institutes  a  comparison,  or  deliv- 
ers the  words  as  matter  of  hearsay,  or  by  way  of  interrogation  or 
ansicer,  or  exclamation,  or  uses  disjunctive  or  adjective  words,  or 
speaks  ironically ;  or,  in  general,  where  the  statement  virtually  in- 

(i)   1  Haw.  Fl.  C.  86.  (0  Vid.  st.  West.  1.  3  Ed.  1,  c.  9. 

(k)  Cro.  J.  407.  (m)  Tel.  154.   1  Vin.  Ab.  446. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  63 

eludes  or  assumes  the  commission  of  the  principal  act,  or  a  strong 
suspicion  of  it. 

From  words  of  suspicion  or  opinion.     Yeoman   (n) 
said  of  Hext,  "  For  my  ground  in  Allerton  'Ilwt  Becks    |     *64 
my  life;  and  if  I  could  find  John   Silver,  I  do  nol  doubt 
but  within  two  days  to  arrest  Hex1  for  suspicion  of  felony."     It  was 
adjudged,  that  for  the  first  part  of  the  words,  "  for  my  ground 
in  Allerton,  Hext  seeks  my  life,"  no  action  lay.  for  two   reasons  ; 
1st,  because  he  may  seek  his  life  lawfully  and  upon  just  cause,  and 
his  land  may  be  held  of  him.     -dly.  Seeking  of  his  life  is  too  gen- 
eral;  and  for  seeking  only  no  punishment  is  inflicted  by  law.     But 
for  the  latter  words,  it  was  adjudged,  that  the  action  lay  ;  because 
for  suspicion  of  felony  he  shall  be  imprisoned,  and  his  life  drawn  in 
question. 

The  defendant  hearing  that  his  father's  barns  were  burnt,  said 
(o),  "I  cannot  imagine  who  should  do  it  but  the  Lord  Stourton," 
and  the  words  were  held  to  be  actionable  [1] 

An  action  lies  for  publishing  of  the  plaintiff,  "  I  (/?)  think,  or  I 
dreamed,  he  committed  a  certain  felony ;"  for  although  the  words 
be  not  directly  affirmative,  the  plaintiff  may,  by  reason  of  them  be 
arrested  upon  suspicion  of  having  committed  that  felony. 

The  defendant  said,  "  He  (?)  is  infected  of  the  rob- 
bery and  murder  lately  committed,  and  doth  *smcll  of   |     *•'..", 
the  murder ;"  and  the  plaintiff  had  judgment,  after  long 
deliberation  and  argument ;  and  this  decision  was  cited  and  approved 
of  in  a  number  of  subsequent  cases,  (r) 

So  for  the  words,  "  I  (.v)  am  thoroughly  convinced  that  you  are 
guilty,"  &c.  for  "  I  am  thoroughly  convinced,"  is  equal  to  a  positive 
averment:  a  man  only  avers  a  thing  because  he  is  convinced  of  the 
truth  of  it. 

(»)  4  Co.  15.     Poph  210.     Latch.  17ft  (7)    1  Vin.  Ab.  435. 

3  Buls.  262.  (r)  8  Bolst.  249.     God.  90.    Hal 

(0)  Mo.  142.     1  Viu.  Ab.  435,  pi.  13.  Cart.  21  1. 

(p)   Smithy.   Wisdome,  Cro.  Eliz.  348.  (s)   Peakc  v.  Oldham,  Cowp.  275. 
6  B  ie.  Ab.  227. 


[1]  "  My  watch  was  stolen  in  Polly  Miller'.-  bar;  I  have  reason  to  believe  that  Tina 
M.  took  it,  and  that  her  mother  Pollj  concealed  it,"  Miller  v.  Miller,  8  Johns.  R.  174; 
"  I  will  venture  any  thing  he  has  stolen  the  book,"  J\~ey  v.  Oil's,  8  Mass.  R.  122;  and 
expressions  by  the  defendant  that  he  had  reason  to  believe  that  the  plaintiff  burnt  the 
barn.  Logan  v.  Steele,  1  Bibb.  593,  were  held  to  be  actionable.  See  also  Bornman  t. 
Boycr.  3  Binney,  515. 

Vol.  I.  13 


G5  CRIMINAL  CHARGE. 

So  for  the  words,  "  If  (0  thou  hadst  thy  rights,  thou  hadst  been 
hanged  for  such  a  felony,"  an  action  lies. 

But  words  of  mere  suspicion  or  opinion,  and  which  do  not  direct- 
ly or  indirectly  impute  any  act,  are  not  actionable  (w). 
[  *Q6  ]  In  a  iate  case  (x)  *where  the  defendant  said  of  the 
plaintiff,"  I  will  take  him  to  Bow  street,  on  a  charge  of 
felony;"  (innuendo,  that  the  plaintiff  had  been  and  was  guilty  of 
forgery ;)  it  was  held  that  the  words  were  not  actionable,  as  they 
charged,  not  that  he  was  a  felon,  but  only  suspicion  of  felony.  And 
the  cases  of  Wood  v.  Merrick  (//),  and  Pollard  v.  Mason  (z), 
were  cited  by  Gibbs,  C.  J.  where  it  was  held  that  the  words  should 
affirm  the  plaintiff  to  be  a  felon :  that  a  mere  assertion  that  the  de- 
fendant charged  him  on  suspicion  of  felony  was  not  of  itself  action- 
able. 

But  yet  it  is  difficult  to  say  that  an  imputation  of  a  crime  may 
not  be  most  effectually  conveyed  by  such  an  assertion,  and  if  so, 
the  case  embraces  all  the  mischief  consequent  upon  the  most  direct 

allegation  (a) 
[    *Q1    ]       *It  seems  to  be  properly  a  question  for  the  jury,  whe- 
ther the  defendant,  though  he  used   words  of  suspicion 
only, 'did  not  mean,  in  effect,  to  impute  the  substantive  crime  to  the 

(t)  Brownl.  3.  (*)   Harrison  v.  King,  4  Price,  46.    In 

(w)  Com.  Dig.   Action  on  the  case  for  the  Exchequer  Chamber,  on  a  writ  of  error 

defamation,  F.  13,  and  per  Holroyd,  J.  in  brought. 

Hodgson  v.  Scarlett,  1  B.  &  A.  243.  Thus  (y)  Ro'l.  Ab.  p.  73,  pi.  21.  1.  50. 

it  has  been  held,  that   for  the  words,  "  He  (z)  lb.  Hob.  381. 

deserves  to  be  hanged,"  no  action  lies.     1  (a)  In  the  case  of  Davis  v.   Noak,   1 

Rol.  43.  1,  10,  15.     So   no  action  lies  for  Starkie's  C.  372,  where  the  declaration,  in 

the  words  "  I  count  thee  to  be  a  witch."  1  an  action  for  a  malicious  prosecution,  al- 

Bol.  46,  1.    35.     So  it  was  held,  that  no  leged    that    the    defendant   charged    the 

action  lay  for  saying,  "  I  will  prove  thee  to  plaintiff  with  felony,  it   was    held   to  be 

be  a  thief;  I  will  prove  it  by  thy  son,  or  supported  by  evidence,  that  the  defendant 

send  him  to  the  devil;  "  for  (as  was  said)  stated  to  the  magistrate  that   he  had  been 

the  last  words  denote  his  doubt.     Cro.  J.  robbed  of  specific  articles,  and  that  he  sus- 

214.     The  last  decision  seems  to  be  of  very  pected  and  believed,  and    had  reason   to 

dubious  authority;  for  the  first  part  of  the  su>pect  and  believe,  that  the  plaintiff  had 

words,  will  prove  thee  to  be  a  thief,  clearly  stolen  them.    Per  Lord  Ellenborough,  C.  J. 

denote  that  an  act  was  meant  to.  be  impu-  and  Abbott  and  Holroyd,  Js.  Bayley,  J. 

ted,  and  the  latter  words  merely  import  dissent.      But   note   that   Mr.   J.    Bayley 

that  the  fact  was  within  the  knowledge  of  differed  from  the  rest  of  the  court  merely 

the  son,  who  would  place  himself  in  jeop-  on    the  point  of  variance,  and   not  upon 

ardy  by  absolving  the  father.     And  see  the  the  general  question,  whether  a  malicious 

case  scited  below,  as  to  adjective  words,  &c.  charge,  though  of  suspicion  only,  was  ac- 

p.  71,  tionable. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  67 

plaintiff.  In  the  case  of  Tempest  v.  Chambers  (fc),  it  appeared 
that  the  defendant,  having  obtained  a  wan-ant  for  the  apprehension 
of  the  plaintiff,  (which  had  been  improperly  issued  upon  an  informa- 
tion before  the  magistrate  of  facts  which  amounted  to  no  more  than 

a  mere  trespass,)  on  meeting  Salmon,  an  agent  of  the  plaintiff's, 
said,  "I  have  got  a  warrant  for  Tempest,  1  will  advertise  a  reward 
of  twenty  guineas  to  apprehend  him;  1  shall  transport  him  for 
felony."  And  Lord  Bllenborongh  left  it  to  the  jury  to  say  whether 
the  defendant  was  speaking  with  reference  to  the  warrant  which  had 
been  improvidently  issued,  or  he  meant  substantively  to  impute  a 
charge  of  felony.     The  jury  found  for  the  plaintiff. 

It  is  observable  that  the  cases  of  Wood  v.  Merrick,  and  of  Pol- 
lard v.  Mason,  which  were  cited  as  conclusive  authorities,  in  the 
Exchequer  Chamber,  in  the  case  of  Harrison  v.  King-, 
can  ^scarcely  be  regarded  as  authorities  at  this  day.  [  *68  ] 
The  words  in  the  former  case  were,  "  I  charge  you  with 
felony ;"  in  the  latter,  "  I  charge  him  with  felony,  in  taking  money 
out  of  the  pocket  of  J.  S."  In  common  understanding,  the  defend- 
ant  would  be  taken  to  assert,  in  the  former  case,  that  the  plaintiff 
was  guilty  of  felony;  in  the  latter,  that  he  had  actually  taken 
money  out  of  the  pocket  of  J.  S.  feloniously  ;  the  words,  1  charge 
you  with  such  a  fact,  naturally  import  not. merely  that  the  fact  is 
true,  but  that  the  speaker  is  so  convinced  of  its  truth,  that  he  ven- 
tures to  act  upon  it  by  making  a  deliberate  charge. 

From  words  of  comparison.     The  defendant  said,  "  You  (c)  are 
as  great  a  rogue  as  J.  S. ,  who  stole  quilts  !" 

So  for  saying,  "  Thou  (</)  art  as  arrant  a  thief  as  any  in 
land,"  an  action  lies. 

So  for  the  words,  u  As  (e)  sure  as  God  govern-  the  world,  and 
King  James  this  kingdom,  J.  N.  hath  committed  treason." 

From  words  of  hearsay.     As  where  the  defendant  said,  "  A  (/) 
woman  told  me  that  she   heard  one  say,  thai    fcfeggs, his 
wife,  had  poisoned  'Griffin,  her  firsl    husband,  in  a    mess      [    V.!'  ] 
of  milk."     And  in  the  case  of  words  so  spoken,  it  seems  t>> 
be  immaterial  whether  the    speaker  really  heard  the  words  or  M>1  | 
unless  (g"),as  will  afterwards  be  seen,  at  the  time  of  repeating  them 

(b)  1  Starkie's  C.  67.  (/)  Goldfl.   189:  Mo    108.  Cro.  I 

(c)  Upton  v.  Pinfold,  Coin.  267.  (g)    U'oolnoth  v.  Meadows,  o  East, 463. 

(d)  Cro.  J.  687.  Cro-  J-  16--   '"" 

(e)  Sid.  63. 


69  CRIMINAL  CHARGE. 

he  afford  the-  plaintiff  a  cause  of  action  against  the  original  au- 
thor [1]. 

From  words  of  interrogation  (Ji).  As  where  the  defendant  said, 
"  When  (0  wilt  thou  bring  home  the  nine  sheep   thou  stolest  from 

J.  N.  ?" 

So  an  action  lies  for  saying,  "  Did  (k)  you  hear  that  J.  S.  is 
guilty  of  treason  ?" 

A.  (I)  the  wife  of  B.  was  asked  by  C.  "  Wherefore  will  your 
husband  hang  J.  S.  ?"  she  answered,  "  For  breaking  our  house  in 
the  night,  and  stealing  our  goods."  The  words  were  held  to  be 
actionable,  for  though  they  were  spoken  in  answer  to  a  question, 
they  amount  to  a  charge  of  stealing  goods. 

The  defendant  publish  the  following  advertisement : 
[  *70  ]  "  This  (m)  is  to  request,  that  if  any  *printer  or  other 
person  can  ascertain  that  James  Delany,  Esquire  (the 
plaintiff),  some  years  since  residing  at  Cork,  late  Lieutenant  in  the 
North  Lincoln  Militia,  was  married  previous  to  nine  o'clock  in  the 
morning  of  the  10th  of  August,  1799,  they  will  give  notice,  Ac, 
and  received  the  reward."  And  it  was  left  by  Lord  Ellenborough, 
C.  J.  to  the  jury  to  say  whether  the  advertisement  imputed  a  charge 
of  bigamy  to  the  plaintiff. 

So  where  the  words  are  spoken  by  way  of  exclamation:  as, 
"  That  («)  perjured  villain  !" 

From  disjunctive  words.  It  has  been  said  that,  where  two  charges 
are  made  disjunctively,  one  of  which  is  actionable  and  the  other  not, 
no  action  lies.  The  defendant  said,  "  Thou  (o)  hast  stolen  my 
mare,  or  didst  consent  to. the  stealing  of  her."  It  was  held,  that 
the  action  was  not  maintainable,  on  account  of  the  latter  words. 
And  so  where  a  charge  was  imputed  in  the  alternative ;  as  where 
the  defendant  said  "  Sparkham  did  steal  a  mare,  or  else  Godwin  is 
foresworn  !"  Although  it  was  averred  that  Godwin  never  did  swear 
any  such  matter,  the  charge  was  held  to  be  too  indirect  to  bear  any 
action. 

In  the  case  of    Stirley  (p)  v.   Hill,   the    words   were,    "  The 

(/i)  For  words  of  interrogation  in  gene-  Rep.  134. 

ral,  see  Mo.  418,  pi.  573.  2  Rol.  Rep.  165.  (/)  Hayward  v.  JSTcylor,  1  Rol.  Abr.  50. 

Palm.  66.  12  Rep.  134.  Cro.  J.  422.  Keb.  (m)    Delany  v.  Jones,  4  Esp.  C.  191. 

559,  pi   52.  (n)   Roll.  Ab.  76. 

(i)   Hunt  v.  Thimblethorpe,  Mo.  418.  1  (o)  Cro.  Eliz.  780. 

Vin.  Ab.  429.  (p)  Cro.  Car.  283. 

(/c)   Earl  of   Northampton's  case,   12 

[1]  See  note  [1]  page  340,  infra. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  70 

brother  was  whipped  about  Taunton  'Cross,  for    steal-         "71    ] 
ing    sheep;    or    burned    in    the    hand    or    shoulder." 
And  the  court,  after  verdict  for  the  plaintiff,  were  of  opinion,  that 
the  words  did  not  import  any  certain  slander. 

These  decisions,  however,  can  scarcely  be  eonsidered  as  preced- 
ents at  this  day,  for  it  is  clear  that  a  charge  of  felony  may  be  com- 
pletely conveyed  by  such  disjunctive  imputations  ;  and  were  they  not 
actionable,  the  legal  consequences  of  slandering  mighl  in  every  case 
be  easily  avoided. 

The  same  objection  once  prevailed,  where  the  person  and  not  the 
act  was  stated  in  the  disjunctive. 

The  defendant  said,  "  She  (7)  had  a  child,  and  either  she  or 
somebody  else  made  way  with  it  !"  And  three  justices  against  the 
opinion  of  Bridgman,  C.  J.  adjudged,  that  the  words  were  not  ac- 
tionable. But  in  a  subsequent  (r)  case  this  decision  was  overruled  ; 
and  upon  the  same  principle,  no  doubt,  it  would  now  be  held,  that 
words  imputing  a  criminal  act  in  the  disjunctive,  are  also  action- 
able. 

From  adjective  words.  Where  the  words  impute  inclination  only, 
they  are  not  actionable  ;  as  to  say,  "  J.  (s)  S.  is  a  mur- 
derous villain  !"  *But  where  the  participle  is  used,  it  is  [  *72  ] 
otherwise;  as  to  say,  "  J.  (7)  S.  is  a  murthering  villain  !" 
The  words  in  the  former  case  importing  an  inclination  only,  in  the 
latter  an  act  done.  So  the  words,  "  Dr.  (u)  Sybthrop  is  robbing 
the  church,"  were  held  to  be  actionable  ;  and  to  say  such  a  per- 
son is  robbing  such  a  man,  or  ravishing  such  a  woman,  is  action- 
able. 

So,  "  Where  is  that  long  shag-haired,  murthering,  rogue  ?"  was 
held  to  be  actionable  (re). 

For  the  words,  u  Traitorous  knave,"  an  action  has  been  held  to 
be  maintainable,  though  not  for  the  words,  "  Rebellious  knave  :" 
and  perhaps  this  distinction  may  even  now  be  eonsidered  as  good 
law,  although  many  of  the  nice  subtleties  which  were  formerly  in 
fashion  are  now  disregarded;  since,  though  traitorous  be  1  mere 
adjective,  not  implying  any  act,  yet  the  Consideration  that  the  of- 
fence frequently  consists  in  intention  only,  may  well  constitute  this 
case  an  exception  (y)  to  the  general  rule. 

(q)  Cart.  65,  56.  (/)  Cro.  Car.  318. 

(r)   Harrison  v.Thornborough,  10  Mod.  (it)   1  Rol.  Ab.  176. 

196.  (x)  Cro.  Car.  318;  Jo.  3'2G. 

(s)  Ld.  Ray.  236.  (y)  Cro.  Eliz.  171.  Lev.  U0. 
13* 


72  CRIMINAL  CHARGE. 

It  is  laid  down  by  Sir  Edward  Coke  (V)>  that  sometimes  adjective 
words  will  maintain  an  action,  and  sometimes  not.  They  arc  ac- 
tionable, 

1.  When   the   adjective   presumes  an  act  committed. 
[  *73  ]  *2.  When    they    scandalize    a   person  in  his  office  or 

function,  or  trade,  by  which  he  gets  his  living.  As  if  a 
man  says,  "That  one  is  a  perjured  knave!"  There  must  be  an 
act  done,  for  otherwise  he  cannot  be  perjured.  The  words,  "  sedi- 
tious (a)  and  thievish  knave,"  have  been  held  not  actionable. 

And  the  distinction  has  been  frequently  taken,  that  "  thieving 
rogue,"  imports  an  act;  "thievish  rogue  (6),"  an  inclination  only. 

So  for  the  words,  "You  (c)  arc  no  thief!"  an  action  lies,  if 
they  be  spoken  ironically. 

And  next,  the  imputation  of  an  act  may  be  inferred  from  any 
statement,  which  virtually  includes  or  assumes  the  commission  of  the 
principal  act,  or  a  strong  suspicion  of  it. 

The  defendant  said,  "  I  (d)  could  prove  J.  S.  perjured,  if  I 
would  !"  and  the  words  were  held  to  be  actionable;  for,  if  true,  J. 
S.  must  have  committed  an  act  of  perjury. 

So  where  the  defendant  said,  "  Thou  (e)  art  a  rogue,  a  runaway 
rogue;  and  didst  run  away  from  Oxford ;  and  thou  art  a  rogue  of 
record."  The  words  were  held  to  be  actionable;  for  if 
[  *74  ]  *true,  the  plaintiff  must  have  been  convicted  of  record. 
The  defendant  said  to  the  plaintiff,  "  In  (/)  Black- 
bull  Yard  you  could  procure  broad  money  for  gold,  and  clip  it  when 
you  had  so  done."  It  was  objected,  that  the  words  were  not  ac- 
tionable, for  they  merely  imputed  a  power,  and  not  an  act.  But 
the  court  held,  that  the  limitation  to  place  implied  an  act,  for  that 
if  a  power  alone  had  been  meant  to  be  imputed,  the  limitation  to 
place  would  have  been  unnecessary — a  power  to  do  being  the  same 
in  all  places. 

So  in  Home  v.  Powell  (#■),  the  defendant  said,  "  You  may  well 
spend  money  at  law,  for  you  can  coin  money  out  of  halfpence  and 
farthings  !"  It  was  held,  that  the  words  were  actionable,  and  im- 
plying an  act  ;  for  by  a  mere  power,  the  plaintiff  could  never  be 
able  to  spend  money  at  law. 

The  defendant  said  of  the  plaintiff,  He  (h)  was  put  in  the  round- 

(z)  4  Co.  19.  (d)  1  Vin.  Ab.  406,  pi.  2. 

(a)  4  Rep.  19.  Cro.  J.  65,  66.    2  Bulst.  (c)  Sty.  220.     1  Vin.  Ab.  415. 

138.  LJ.  Ray.  236.  (/)  Salk.  697.     Speed  v.  Parry. 

(6)  Dorrell  v.  Grove,  Freem.  279.  {g)  Salk.  697. 

(c)  1  Vin.  Ab.  430,  pi.  8.  (ft)  Beavor  Hides,  2  Wils.  300. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  74 

house,  for  stealing  ducks  at  Crowland ;"  and  judgment  was  given 
for  the  plaintiff.     For  though  the  court  were  at  first  of  opinion,  that 
they  were  bound  by  former  authorities,  and  that  if  judgment  were  to 
be  given  for  the  plaintiff,  many  actions  would  arise  at  ev- 
ery 'assizes  in  the  kingdom,  where  the  common  topic  of     [  ''■■>  ] 
conversation  is,  that  such  a  man  was  sent  to  gaol  for  such 
a  crime  ;  yet,  afterwards,  they  changed  their  opinion,  and  held,  that 
the  jury  having   found  the  words  to  have  been  falsely  spoken,  they 
clearly  imported  that  the  plaintiff  had  been  guilty  of  a  crime:  that 
the  objection  was,  that  the  words  did  not  expressly  allege  that  the 
plaintiff  had  stolen  the  ducks,  but  that  words  must  be  taken  accord- 
ing to  common  parlance. 

And  so  in  a  number  of  other  cases,  the  asserting  the  plaintiff  to 
have  been  confined  or  punished  (i)  for  a  certain  offence,  has  been 
held  to  be  actionable,  for  the  imputation,  at  all  events,  throws  strong 
suspicion  upon  him. 

So  where  the  defendant  said,  "  He  (&)  is  under  a  charge  of 
prosecution  for  perjury  ;  G.  W.  had  the  Attorney-General's  instruc- 
tions to  prosecute."  It  was  held  that  the  words  were  actionable,  as 
being  calculated  to  convey  the  imputation  of  perjury. 

So  where  the  defendant  said  of  the  plaintiff,  "His  (0  character 
is  infamous ;  he  would  be  disgraceful  to  any  society.  Whoever 
proposed  him  must  have  intended  it  as  an  insult ;  I  will 
pursue  *him  and  hunt  him  from  all  society.  If  his  name  [  *76  ] 
is  enrolled  in  the  Royal  Academy,  I  will  cause  it  to  be 
erased,  and  will  not  leave  a  stone  unturned  to  publish  his  shame 
and  infamy.  Delicacy  forbids  me  from  bringing  a  direct  charge ; 
but  it  was  a  male  child   of  nine  years  old  who  complained  to  me." 

So  where  the  defeudant  said,  "I  (»»)  dealt  not  so  unkindly  with 
you,  when  you  stole  my  stack  of  corn." 

The  defendant  said  to  a  husband  in  London,  "  You  (»)  are  a 
cuckoldy  old  rogue  !"  and  the  words  were  held  to  be  actionable,  for 
they  imply  that  the  wife  is  a  whore,  for  which,  by  the  custom  of  the 
city,  she  is  liable  to  temporal  punishment. 

Words  imputing  intention  only  to  commit  crime,  are  not  actiona- 
ble of  themselves,  unless  in  the  ease  where  the  intention  is  of  a 
treasonable  nature  (o). 

(i)  Cro.  J.  2-17.  («)  IStr.  171. 

(k)   Roberts  v.  Camden,  9  East,  93.  (o)  Cro.  J.  471.     "To  impute  evil  in- 

(l)    Woolnoth  v.  Meadows,  5  East,  463.  clinations   to   a   man,   which   were   never 

(m)   Cooper  v.  Hawkswell,  2  Mod.  58.  brought  into    action,    is  not    actionable. 


76  CRIMINAL  CHARGE. 

As,  if  one  say  to  another,  "Thou  (/>)  wouldst  have  killed  me," 
no  action  lies  [1]. 
[  *T7  ]  *So  for  the  words,  "  She  (//)  would  have  cut  her  hus- 
band's throat,  and  did  attempt  it,"  an  action  lies  ;  be- 
cause an  attempt,'  that  is,  an  act,  is  charged  ;  but  in  the  same  case 
it  was  held,  that  for  the  first  words,  "  she  would  have  cut  her  hus- 
band's throat,"  no  action  could  be  maintained. 

2dly.  Where'  the  act  charged  is,  in  legal  strictness,  impossible. 

Where  a  criminal  charge  is  conveyed  by  the  defendant's  ex- 
pressions, the  liability  to  make  reparation  cannot  be  effected  by  any 
impropriety  in  the  terms  of  the  communication,  whether  legal  or 
grammatical ;  for  the  loss  of  character,  and  its  probable  conse- 
quences, constitute  the  ground  of  action,  without  reference  to  the 
means  employed.  The  contrary  doctrine,  indeed,  at  one  time,  pre- 
vailed. 

It  has  been  holden,  that  if  a  married  woman  say,  "  You  (r)  have 
stolen  my  goods,"  the  words  are  not  actionable,  the  words  being 
repugnant ;  for  as  a  married  woman  cannot  have  goods  of  her  own, 
she  cannot  be  robbed  of  any. 

But  in  CharneVs  case  (s>,  which  was  earlier  than  the  preceding, 
the  wife  said,  "  My  turkeys  are  stolen,  and  Charnel  hath 
[  *78  ]  stolen  them ;"  and  *the  same  objection  being  made  in 
arrest  of  judgment,  the  court  said,  "The  wife  did. 
charge  the  plaintiff  with  stealing  her  turkeys  ;  and  if  a  person  who 
had  no  horse  were  to  publish  these  words,  '  J.  S.  hath  stolen  my 
horse,'  the  discredit  would  be  as  great  to  J.  S.  as  if  the  publisher 
had  had  a  horse  ;  for  every  person  who  heareth  the  words  may  not 
know  whether  he  had  a  horse  or  no."  And  in  the  subsequent  case 
of  Stamp  (f)  v.  White,  the  defendant's  wife  said,  "  Thou  art  a 
thievish  rogue,  for  thou  hast  stolen  my  faggots  !"  Although  it  was 
objected  that  the  words  were  without  meaning  ;  for  a  married  wo- 

Words   to  be  actionable,   should  be   un-  Haughton,  2  Buls.  206.     1  Vin.  Ab.  440. 
equivocally  so."     Per  Lord  Ellenborough,         (3)  Lane  98.     1  Vin.  Ab.  440,  pi.  9. 
C  J.  in  Harrison   v.    Stratton,  4  Esp.  C.         (./ )  1  Roll.  Ab.  74.     6  Bac.  Ab.  238. 
218.  (*)   Cro.  Eliz.  279. 

(p)  Dr.  Poe's  case,  cited  by  Coke  and        (t)  Cro.  Jac.  600. 

[1]  In  Cornelius  v.  Van  Slyck,  21  Wendell,  70,  the  words  ,lyou  will  steal,  and  I 
can  prove  it,"  were  held  actionable  on  demurrer,  on  the  ground  that  they  might  well  be 
taken  to  import  a  charge  that  the  plaintiff  had  been  guilty  of  theft.  It  was  conceded 
where  the  words  plainly  import  a  charge  of  mere  intention  to  do  a  criminal  act,  or 
amount  only  to  an  assertion  that  they  are  not  actionable. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  78 

man  could  not  have  property  of  her  own,  yet  it  was  held,  that  the 
words  were  actionable;  and  it  was  to  be  understood  according  to 
common  intendment,  that  the  defendant  charged  the  plaintiff  with 
stealing  her  husband's  faggots. 

So  where  the  defendant  said,  "  These  (m)  guineas  arc  Mr. 
Bendish's  (the  plaintiff's)  ;  and  were  given  me  to  vote  for  him." 
It  was  urged,  on  motion  in  arrest  of  judgment,  that  the  words  are 
insensible;  for  that  when  the  plaintiff  has  given  money  to  the  de- 
fendant, it  cannot  be  the  plaintiff's  money  ;  but  judgment  was 
for  the  plaintiff. 

The  older  cases,  indeed,  carried  the  doctrine  of  re- 
pugnancy to  a  very  unreasonable    extent ;    and  'the  [  Ta  ] 
courts  arrested  judgments,  not  only  on  the  ground  that 
an  actual  inconsistency  appeared  on  the  face  -of   the  record,  but 
even    where  no    inconsistency    appeared,  because    such  might   by 
possibility  exist. 

The  rule,  however,  seems  to  be  now  established,  that  no  inconsis- 
tency or  grammatical  impropriety  will  prevent  the  words  from  being 
actionable,  where  the  intention  to  charge  the  plaintiff  with  the  com- 
mission of  a  crime  plainly  appears. 

II.  The  criminal  quality  of  the  matter  charged  must  appear 
with  certainty. 

This  may  appear, 

1st.  From  the  use  of  general  terms  of  known  legal  import. 

2ndly.  From  circumstances  explaining  the  meaning  of  terms 
otherwise  doubtful,  or  innocent. 

3rdly.  From  the  mere  description  of  the  circumstances  constitu- 
ting the  offence. 

1st.  From  the  use  of  terms  of  known  legal  import. 

It  seems  atone  time  to  have  been  understood  that  no  charge  was 
actionable,  when  conveyed  in  terms,  which  did  not  particularize  the 
circumstances  of  the  offence.  So  that  to  say  a  nun  was  "  a  traitor 
(to),  or  a  thief,"  did  not  afford  him  a  ground  of  ac- 
tion, "unless  he  had  sustained  special  damage  from  the  [  '80  ] 
words.  And  to  such  an  extent  was  the  nicety  carried, 
that  even  in  cases  where  the  words  did  state  Borne  of  the  circum- 
stances, it  was  held  to  be  incumbent  on  the  plaintiff  to  prove  that 
facts  connected  with  the  charge  were  partially  true,  in  order  to  ren- 
der it  the  more  probable  that  he  might  have  been  placed  in  jeopardy 

(w)  11  Mod.  174.  00  Bro.  Action,  surleCas.  27,11.  8,11. 


80  CRIMINAL  CHARGE. 

by  the  accusation.  And  this  affords  reason  to  suppose  that,  original- 
ly, the  only  ground  of  allowing  such  an  action,  without  proof  of 
special  damage,  was,  the  danger  to  which  the  party  was  exposed  of 
a  criminal  prosecution,  to  which  he  could  scarcely  have  been  sub- 
jected by  a  bare  general  charge,  unsupported  by  any  facts  or  circum- 
stances which  might  give  it  color  (V). 

Thus,  in  the  case  of- Jacob  O)  v.  Mills,  it  was  held,  that  for  the 
words,  "  He  hath  poisoned  J.  S.  and  it  shall  cost  me  100/.  but  I 
will  hang  him,"  no  action  was  maintainable,  because  the  plaintiff  did 
not  aver  (and  of  course  prove)  that  J.  S.  ivas  dead  at  the  time  the 
words  were  spoken. 

The  defendant  said,  "  Sir  Thomas  Holt  struck  his 
[  *81  ]  cook  on  the  head  with  a  cleaver,  and  cleaved  *his 
head  ;  the  one  part  lay  on  the  one  shoulder,  and  an- 
other part  on  the  other."  After  verdict  for  the  plaintiff,  judgment 
was  arrested,  upon  the  ground  that  it  did  not  appear  that  the  cook 
was  killed. 

But  in  other  cases,  both  prior  and  subsequent  to  the  former,  similar 
objections  were  overruled.  In  the  case  of  Webb  (z)  v.  Poor,  the 
words  were,  "  I  will  call  him  in  question  for  poisoning  my  aunt, 
and  I- make  no  doubt  to  prove  it."  It  was  moved  in  arrest  of  judg- 
ment, that  the  plaintiff  had  not  averred  that  his  aunt  was  poisoned  ; 
but  the  court  would  not  allow  the  objection,  saying,  that  the  plain- 
tiff's credit  was  impeached,  whether  she  was  poisoned  or  not.  And 
the  same  point  was  ruled  in  Talbot  (a)  v.  Case,  where  it  was  said, 
that  the  death  of  the  person  alleged  to  have  been  murdered,  would 
be  intended,  unless  the  contrary  appeared.  Still,  however,  it  was 
held,  that  if  it  appeared  that  the  person  said  to  have  been  murdered 
was  in  fact  living,  no  action  could  be  maintained.  The  plaintiff  (&) 
showed  in  his  declaration,  that  the  defendant  had  a  wife  yet  living  ; 
and  that  he  said  of  the  plaintiff,  "  Thou  hast  killed  my  wife :  thou 
art  a  traitor  !"  and  it  was  beld  that  no  action  lay  ;  and 
[  *82  ]  a  *distinction  was  taken  between  the  case  where  the 
person  stated  to  have  been  murdered  was  still  alive,  and 
where  he  was  dead ;  that,  the  wife  being  alive,  no  action  lies,  al- 
though the    defendant  says  that  the  plaintiff  has    murdered  her  ; 

(x)  It  seems  that  formerly  slander  was  (z)  Cro.  Eliz  569. 
not  actionable,  unless  it  occasioned  special  (</)  Cro.  Eliz.  823. 
damage  or  affected  the  life  of  the  party.    2         (b)   Snag  v.   Gee,  4  Rep.  16.     9  Cro. 

Vent.  28.  Car.  484. 

(y)  Cro.  J.  331,  343.   1  Vent.  117. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  82 

since  it  appears  that  no  murder  of  her  can  have  been  committed 
nor  the  plaintiff  in  any  jeopardy  ;  and  so  the  words  are  vain;  and 
no  scandal  or  damage  to  the  plaintiff. 

To  require  the  plaintiff  to  prove,  that  the  party,  with  whose  mur- 
der he  is  charged,  is  actually  dead,  w< >uld  be  highly  unreasonable  and 
inexpedient;  since  the  slanderer  might  secure  impunity  by  fixing 
either  upon  a  fictitious  person  as  the  supposed  victim  of  the  murder, 
or  upon  some  real  person  whose  death  the  plaintiff  might  not  be 
able  to  prove. 

In  the  case  of  Snag-  v.  Gee,  (cited  by  Sir  E.  Coke  (c),  in  his 
fourth  report,)  it  appeared  upon  the  record,  that  the  wife,  alleged 
to  have  been  murdered,  was  still  alive  ;  and  the  action  was  held  not 
to  be  maintainable,  because  the  plaintiff  was  not  put  in  jeopardy  by 
the  words. 

It  cannot,  however,  fairly  be  inferred  from  this,  that  the  plaintiff 
is  in  all  cases  precluded  from  recovering,  although  the  person,  alleg- 
ed to  have  been  murdered,  should  be  still  alive  ;  since 
*the  plaintiff's  life,  or  liberty  at  least,  may  have  been  [  *83  ] 
placed  in  jeopardy  in  consequence  of  the  injurious  report, 
though,  in  fact,  at  the  time  of  pleading,  or  upon  the  trial,  the  de- 
fendant may  be  able  to  prove  the  person  alleged  to  have  been  mur 
dered  to  be  still  living.  The  words,  if  actionable  without  special 
damage,  must  be  so  immediately  when  spoken;  and  their  actionable 
quality  must  then  depend  upon  the  fact,  whether  the  hearers  were 
aware  that  the  person  alleged  to  be  murdered  was  really  alive  ;  if 
they  did  not  know  the  fact,  then  all  the  consequences  (the  proba- 
bility of  which  renders  a  charge  of  murder  in  any  case  actionable,) 
may  follow  ;  since,  unfortunately,  several  melancholy  instances  may 
be  cited  where  an  accused  person  has  suffered  for  the  supposed 
murder  of  one  who  survived  hi  in. 

Should  it,  however,  precisely  appear,  upon  the  plaintiff's  own 
statement,  that  the  person  charged  to  have  been  murdered  was  alive 
when  the  words  were  spoken,  it  would  probably  be  presumed  that 
the  hearers  knew  the  fact. 

The  plaintiff  (d)  declared  that  the  defendant  said  of  him,"  Be  is 
a  base  gentleman,  and  had  three  or  four  children  by  A.   S.  "his  maid 
servant;  and  after  killed  them,  or  caused  them  to  be 
•killed  ;"  and  then  averred,  that  he  never  was  guilty  of    f  *84  ] 
any  incontinency  with  A.  S.  nor  any  other,  nor  of  any 

(c)  4  Rep.  16.  9.  Jo.  141.  Lat.  159.  Cart.  65.  Comb.  132. 

(d)  1  Vin.  Ab.  409,  pi.  4.    Poph.  187 


84  CRIMINAL  CHARGE. 

such  felony  or  murder.  After  verdict  for  the  plaintiff,  it  was  ob- 
jected, in  arrest  of  judgment,  that  inasmuch  as  he  had  averred  that 
he  never  was  guilty  of  any  incontinency  with  A.  S.  it  was  all  one 
as  if  he  had  averred  that  he  never  had  any  child  by  A.  S.,  and  that 
if  he  had  so  averred,  no  action  would  lie  ;  for  then  it  would  appear 
to  the  court,  that  there  was  no  such  thing  in  rerum  natura,  as  is 
supposed  to  have  been  killed.  But  it  was  adjudged  for  the  plaintiff  ; 
because  it  was  not  specifically  averred  that  he  had  no  child  by  A. 
S.  but  only  generally,  that  he  was  not  incontinent  with  her. 

And  the  like  degree  of  particularity  has  been  required  in  other 
cases  where  felony  has  been  charged. 

Thus,  for  the  words,  "  Thou  (e)  hast  committed  burglary  in 
breaking  his  house,  and  taking  his  goods."  It  was  held,  that  no 
action  was  maintainable  ;  it  being  uncertain,  as  no  person  was 
named,  whose  house  and  goods  were  meant.  And,  upon  the  same 
principle,  it  was  held,  that  a  general  charge  of  forgery  (f)  was 
not  actionable,  without  reference  to  some  particular  deed, 
[  *85  ]  "instrument,  or  other  subject  matter.  So  it  was  held, 
that  a  general  charge  of  subornation  (g-)  of  perjury  was 
not  actionable,  unless  it  appeared  that  the  perjury  had  been  com- 
mitted. 

These  doctrines  have,  however  been  long  exploded  ;  and  the  rule 
seems  now  to  be  perfectly  established,  that  an  action  is  maintainable 
for  a  general  imputation  conveyed  in  apt  terms. 

The  establishment  of  this  rule  necessarily  defeated  another 
nicety,  which  has  been  alluded  to  as  having  formerly  been  counte- 
nanced by  the  courts,  namely,  that  when  the  charge  described  any 
circumstances  of  the  offence,  it  was  incumbent  upon  the  plaintiff 
to  show  the  existence  of  such  particulars  as  might  serve  to  give 
color  to  the  defendant's  imputation,  since  it  would  be  absurd  to 
allow  a  remedy  against  general  charges  where  no  color  could  be 
shown,  and  to  deny  it  where  the  imputation  was  equally  prejudicial, 
because  it  contained  particulars,  which  particulars  the  plaintiff 
might  be  equally  unable  to  prove. 

As  for  instance,  if  for  the  words,  "  you  committed  a  murder," 
the  plaintiff  be  entitled  to  recover,  it  would  be  highly  unreasonable 
in  an  action  for  the  words,  "You  murdered  J.  S."  to  require  him 
to  prove  that  such  a  person  as  J.  S.  had  existed,  but  was  dead  at 
the  time  the  words  were  spoken. 

(e)  Brown  v.  St.  John,  1  Rol.  Ab.  71.  (g)  6  Mod.  200. 

(/)  3  Leon.  231. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  85 

*It  may  next  be  proper  to  refer  to  a  few  cases  where 
general  words  have  been  held  to  be  actionable. 

An  action  lias  been  held  to  be  maintainable  for  the  words  traitor 
(//),  murderer,  (i),  thief,  (k)  sheep-stealer  (/>■ 

For  charging  another  with  felony  (»»),  perjury  (n),  Bubornation 
of  perjury  (o),  forgery  (/)),  robbery  (7). 

It  was  once  held,  that  to  call  another  a  pick-pocket  (r),  did  not 
amount  to  a  charge  of  felony  ;  this  decision  has,  however,  been 
overruled  (s). 

Whilst  the  statutes  againsl  witchcraft  remained  in  force,  it  seems 
that  the  term  witch  was  not  actionable,  unless  it  was  coupled  with 
some  act  of  witchcraft  ;  the  cases,  however,  relating  to 
this  "offence,  are  so  inconsistent  with  each  other,  and      [  *87 
with  any  settled  principle,  as  to  appear  incapable  of  af- 
fording any  illustration  of  the  subject  of  this  treatise. 

To  charge  one  with  having  cozened  another,  has,  in  a  great  num- 
ber of  cases,  been  held  to  be  too  indefinite  to  support  an  action. 
The  defendant  said,  "Thou  (7)  art  a  cozening  knave,  and  hast 
cozened  me  out  of  500/."  and  it  was  held  that  no  action  lay. 

So  to  accuse  («)  another,  of  cheating  is  too  general  to  support  an 
action  [1]. 

So  to  say,  he  (V)  is  a  rogue,  varlet,  or  the  like,  is  not  actiona- 
ble [2].  So  to  say,  "Thou  (//)  art  a  common  filcher,  a  companion 
of  cut  throats,"  &c. 

So  to  say,  "  He  (V)  is  a  bloodsucker,  and  not  fit  to  live  in  the 
commonwealth;  and  his  child,  not  born,  is  bound  to  curse  him.'' 

(/()   Dal.  17.     Ero.  Ac.  sur  le  Cas.  pi.  Sty.  235. 

2.  27  H.  8,  14.                                .  (n)  Ow.  62.   Noy,  01.  1    Vin.Ab.40fi. 

[']  Mo.  29.  (o)  Cro.  Eliz.  308.  Cro.  J.  laS.     1  Kol. 

(k)   But  the  term  thief  will  not  be  ac-  Ab.  41. 

tionable,  if  it  appear  from  the  context  that  (;,)  Jones  v.  Heme,  2  Wils.  87. 

it  was  not  used  in  a  felonious  sense.  Should  (<j)  Cro.  J.  117. 

this  appear  on  the  plaintiff 'a  own  showing,  (r)  3  Salk  •"._'■"). 

he  would  be  nonsuited.     See  Thompson  v.  (?)  n  Mod.  265. 

Bernard,  1  Camp.  4S.      Christie  v.  Pow-  (/)   Hutt  18.      1  Viu.  Ab.    127.  pi  0.   u' 

ell,  Peake's  C.  4.    Otherwise  it  will  be  in-  Lev.   171.     Cro,   Elii.  '.'■">.   Ow.    17.  Uuls. 

cumbent  on  the  defendant  toshow  that  the  172.  Show.  181.     <:    i.  284.  Cm  ■' 

word    was  not  used  in  a  felonious   sei  (>/)  2  Silk    I     I 

Vide  infra.  Evidence  in  Defence.  (x)  4  Rep    1">,  b.    Ld.  Ray.  1117. 

(0  3  Buls.  101.  (,_,)  cro.  Kliz.  •'    I 

(m)  Jo.  32.  Cro.  Car.  276.     Poph.  210.  (z)  Noy,  64. 


[1]  See  Chase  v.    U'hillock.  3  Hill,  139;  Stevenson  v.  Haydcn,  2  Mass.  R.  406. 
[2]  See  Caldwell  v.  Abbey,  Hardin's  R.  530. 

Vol.  I.  14 


87 


CRIMINAL  CHARGE. 


2dly.  The  criminal  quality  of  the  act  imputed  may  appear  from 
circumstances  explaining  the  meaning  of  words  doubtful  or  innocent. 

In  consideration  of  law,  that  is  certain  which  can  be  so  rendered  : 
it  is.  therefore,  of  no  importance  whether  the  terms  used 

*88  ]      be  doubtful,  or  even  *apparently  innocent,  provided  it 
can  be  shown  that  they  could  and  did  convey  the  offen- 
sive meaning  which  forms  the  ground  of  complaint. 

An  imputation  of  being  forsworn  is  the  most  common  instance  of 
cases  falling  under  this  division,  and  has  given  rise  to  a  numerous 
class  of  decisions  [a  a]. 

It  has  been  held,  that  to  accuse  another  of  having  forsworn  him- 
self, generally,  is  actionable  («)  ;  but  it  seems  to  be  now  perfectly 
settled,  that  the  term  is  not  actionable,  unless  it  appear  from  the 
accompanying  circumstances  to  have  been  meant  and  understood  of 
such  a  forswearing  as  would  constitute  the  offence  of  perjury  (6).  [1] 

Thus,  to  say  (c),  "  A.  B.  being  forsworn,  compounded  the  prOS- 


da  o]  Where  the  words  were  "  Mr.  H.'s 
oath  is  not  to  be  taken,  for  he  has  been  a 
forsworn  man;  I  can  bring  people  to  prove 
it,  and  they  that  know  him  will  not  sit  in 
the  jury-box  with  him,"  it  was  held  that 
they  were  not  actionable  without  averments 
to  show  that  they  were  spoken  in  reference 
to  the  conduct  of  the  plaintiff  as  a  juror. 
Hall  v.  Weedov,  8D.  &  R.  140. 

In  an  action  of  slander  for  words  charg- 
ing a  party  with  being/orsnorn,  the  words 
though  not  actionable  per  se,  may  be  ren- 
dered so  by  alleging  and  proving  a  colloqui- 
um, that  the  words  were  spoken  in  reference 
to  testimony  given  by  the  plaintiff  in  an  ac- 
tion depending  in  a  judicial  tribunal,  in 
which  the  plain  tiffwas  sworn  as  a  witness. 
It  was  formerly  held  necessary  to  the  main- 
tenance of  such  an  action  that  it  should  be 
alleged  and  proved,  that  the  court  in  which 
the  trial  was  had  possessed  jurisdiction  of 
the  subject  matter,  and  had  authority  to 
administer  an  oath;  and  that  the  evidence 
given  by  the  plaintiff  was  material  to  the 
issue  on  trial.  Now  it  is  held  otherwise. 
The  authority  to  administer  the  oath,  and 
the  materiality  of  the  testimony  in  respect 
to  which  the  charge  is  made,  uill  be  pre- 
sumed until  the  contrary  be  shown.  Whe- 
ther such  presumption  can  even  be  rebut- 


ted by  proof  may  well  be  doubted,  for  if 
the  charge  would  naturally  be  understood 
by  the  hearers  to  impute  the  crime  of  per- 
jury, and  there  be  nothing  to  induce  the 
belief  that  the  swearing  spoken  of  was 
extra-judicial,  or  that  the  evidence  was 
immaterial,  no  reason  is  perceived  why  the 
presumption  should  be  allowed  to  be  rebut- 
ted by  proof.  The  intent  of  the  defendant, 
unless  communicated  to  the  hearers,  doe9 
not  affect  the  question.  It  is  believed  that 
there  is  no  decision  by  the  English  Courts, 
requiring  proof  of  the  materiality  of  the 
evidence  charged  to  be  false,  in  order  to 
sustain  the  action.  On  the  trial  of  an  in- 
dictment for  perjury  such  proof  is  indis- 
pensable. See  the  following  cases;  Coons 
v.  Robinson,  8  Baibour's  Law  R.  655; 
Jacobs  v.  Tyler,  3  Hill,  572;  Price  v. 
Power,  12  Wendell,  502;  16  Wendell, 
454.  S.  C.  in  error;  Butleifield  v.  Buffum, 
9  New  Hamp.  R.  156;  Coleman  v.  God- 
win, 3  Doug.  91:  Dub  ym pie  v.  Lofton, 
2  McMullan  So.  Car.  II.  112;  Harris  v. 
Punhj,  1  Stewart's  Alab.  R.  231. 
(<;)  2  Buls.  40. 

(b)  4   Rep.   15.    2  Buls.   150.     Holt  v. 
Scholefield,  6  T.  R.  691. 

(c)  Cro.  Eliz.  609.     2  Rol.  Rep.  410. 


[1]  See  note  [1]  p.  22,  ante. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  88 

edition,"  is  actionable,  fur  an  indictable  forswearing  must  have  been 
intended  [2]. 

So  the  term  "  forsworn"  is  actionable  when  reference  ia  made  to 
a  court  (il)  in  which  false  swearing  would  amount  to  perjury. 

The  defendant  said,  "  Arthur  (<  i  Oolome  ia  a  forsworn  man,  and 
hath  taken  a  false  oath  in  his  deposition  at  Tiverton,  where  he  wa  - 
his  law  against  me  ;"   and  the  plaintiff  had  judgment,  the 
■forswearing  appearing  by  the  description  to  have  amount-        *89  ] 
ed  to  perjury. 

So  to  say,  "  Thou  wert  forsworn  at  such  a  trial  (/),"  (with  refer- 
ence to  a  trial  where  the  offence  of  perjury  might  have  been  commit- 
ted) is  actionable. 

Where  reference  is  made  to  a  particular  court,  the  imputation  is 
actionable,  if  perjury  could  have  been  committed  there.  In  Buch 
case,  however,  it  is  incumbent  on  the  plaintiff  to  show  that  the  per- 
jury could  have  been  committed  there  [1]. 

The  defendant  said,  "  Thou  (g*)  wert  forsworn  at  Whitechurch 
court,"  and  the  words  were  held  not  to  be  actionable,  because  it  did 
not  appear  that  Whitechurch  court  was  a  court  of  record. 

So  it  was  held,  that  no  action  lay  for  saying, ,-  lie  ('//)  has  for- 
sworn himself  in  Leake  court,  without  showing  it  to  be  a  court  which 
could  compel  the  taking  of  an  oath. 

It  is  not  necessary  that  the  forswearing  should  be  shown  to  have 
been  intended  of  a  perjury  within  the  statute  of  Elizabeth,  for  p 
jury  is  an  offence  punishable  at  Common  Law  (%).     So, 
although  Ecclesiastical  Courts  are  not  "mentioned  in  the        *90  ] 
statute  of  .Elizabeth  against  perjury,  yet  an  action  lies  for 
imputing  a  forswearing  in  aji  Ecclesiastical  Court  [2].    The  defend- 
er Cro.  Eliz.  720.     1  Viu.  Ab.  409,  pi.  (g)  Cro.  Car.  378. 
b.  7.  (/i)  1  Rot.  Ab.  S9.pl.  :  .  ».  207. 

(c)   Cro.  J.  204.  (i)   1  Rot.  Ab.  49. 

(/)  Cro.  Car.  378.    Lut.  L292. 

[2]  "  You  swore  to  a  lie,  for  which  yon  now  il  va  1  in  liete  I,"  be!  1  actionable.  Ptl- 
tonv.   Ward,  3  ('aims,  78. 

[1]  Although  the  plaintiff  h  1 1  omitt  id  to  met  jurisdiction  in  the  curt  before  which 
the  oath  was  taken,  the  declaration  w  ic  ient  on  motion  in  arrest  after  verdict; 

Niven  v.  Mtinn,  18  Johns.  R.  48.  So  '*  you  swore  false  in  mart,"  wte  bel  1  Bnffioient 
without  a  colloquium  on  like  motion:  Btimillo  \.  D  rf,  1  llr.w.  (N.  C.)  R.  116;  and 
under  like  circumstances  the  words  "  you  swore  false  at  the  trial  ofyonr  brother  John," 
were  held  sufficient;   Fowle  v.  Rabbins,  12  Mass.  It.   196. 

[-]  In  Chapman  v.  Gillet,  2  Conn.  II.  40,  it  was  held  that  an  action  lay  for  charg- 
ing the  plaintiff  with  perjury,  in  giving  testimony  before  a  church  judicatory  in  Con- 
necticut; so  held  by  six  judges — three  dissenting. 


go  CRIMINAL  CHARGE. 

ant  said,  "  Thou  (./)  art  a  forsworn  knave,  and  I  will  prove  thee  to 
be  forsworn  in  the  Spiritual  Court ;"  and  it  was  held  that  the  ac- 
tion well  lay  ;  for  the  Ecclesiastical  Court  is  a  judicial  court,  and 

well  known  (&)• 
To  say,  "  Thou  (/)  wast  forsworn  before  ray  Lord  Chief  Justice, 

in  evidence,"  is  actionable. 

So  to  say  that  another  is  foresworn  before  a  Justice  (m)  of  the 
Peace  is  actionable  ;  or  before  such  a  person,  naming  him,  provided 
it  can  be  shown  with  certainty,  that  the  person  so  named,  was  a 
Justice  of  the  Peace. 

The  defendant  said, "  Thou  (w)  art  a  forsworn  knave  !"  The  plain- 
tiff asked,  "  Where  ?"  The  defendant  replied,  "  In  Ilston  court ;' ' 
and  the  words  were  held  to  be  actionable,  the  court  alluded  to  being 
a  Court  Leet,  where  the  offence  might  have  been  committed. 
["  *91  ]  "  Thou  (o)  art  a  forsworn  man  ;  I  will  teach  *thee  the 
price  of  an  oath,  and  will  set  thee  on  the  pillory."  And 
the  words  were  held  to  be  actionable,  because  the  defendant  showed 
that  he  meant  to  impute  a  perjury,  for  which  the  plaintiff  ought  to 
stand  in  the  pillory  [a  a~] . 

The  injurious  import  of  the  term  stealing,  has  undergone  much 
discussion. 

In  Baker  (p)  v.  Pierce,  the  words  were,  "  You  stole  my  boxwood, 
and  I  will  prove  it."  Upon  motion  in  arrest  of  judgment,  a  long 
strino-  of  cases  was  cited  for  the  defendant,  in  which  the  term  steal- 
ing had  not  been  considered  as  actionable  ;  as  where  the  defendant 
said,  "  You  (</)  are  a  thief  and  stole  my  timber."  "  You  (r)  are 
a  thief  and  stole  my  corn,  hops  and  apples."  "  You  (s)  s.tole  timber 
out  of  my  yard."  "You  (0  stole  corn  out  of  my  yard."  All  of 
which  had  been  decided  upon  the  ground,  that  unless  the  additional 
words  show  that  a  charge  of  felony  was  intended,  they  are  to  be 
taken  in  their  mildest  acceptation. 

(j)   Shaw  v.  Thompson,  Cro.  Eliz.  609.  [a  a]  To  say  "  he  has  defrauded  a  meal- 

(k)  But  it  has  been  held  in  a  late  case,  man  of  a  roan  horse,  is  not  actionable,  it 

that  an  indictment  does  not  lie  in  respect  not  being  said  to  have  been  done  by  a  false 

of  a  false  oath  before  a  surrogate.     R.  v.  pretence,  or  in  any  criminal  way."    Rich- 

J-oster,  Russ.  and  Ry.  C.  C.  R.,  459.    But  ardson  v.  Allen,  2  Chitt.  C.  T.  M.  652. 

now  see  the  Stat.  4,  G.  4,  c  76,  s.  14.  (p)  6  Mod.  23. 

(/)  Le.  127.  (q)  Cro.  J.  65. 

(m)   Gurneth  v.  Derry,  3  Lev.  166.    4  (r)  2  Brownl.  280. 

Co.  17.  (s)  Cro.  J.  673.  All.  31.  Hob.  331.  Sty. 

(n)   Cro.  Eliz.  720.  231. 

(o)  1  Vin.  Ab.  407,  pi.  11.  (0  Hob.  406. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  01 

For  the  plaintiff,  it  was  contended,  that  "You  have  Btolen  my 

timber"  is  actionable ;  for  it  musl  1"'  felled  and  Bevered 

from  the  stock,  before  'it   is  timber,  according  to  the  dis-  [  "92  ] 
tinction  made  in  the  old  hexameter  : — 

"  Arbor  dum  orescit,  lignum  da  aesoit  (/)•" 

Holt,  C.  J.  said,  %*  The  opinions  of  later  times  have  been  in  many 
instances  different  from  those  of  former  day-  in  relation  to  word-  ; 
for  formerly  there  has  been  a  difference  taken  between  saying, 
'Thou  art  a  thief,  and  hast  stolen  my  wood;'  and,  'Thou  art  a  thief, 
for  thou  hast  stolen  my  wood.'  And  judgments  have  gone  both 
ways  ;  but  later  opinions  make  no  difference  if  the  words  be  spoken 
at  the  same  time.  And  these  are  scrambling  things  that  ha 
backwards  and  forwards,  and  the  idle  people  in  the  country,  that 
privately  cut  and  carry  away  coppice  wood,  are  In  common  parlance, 
called  '  woodstealers.'  "  And  he  said,  that,  4t  Stealing,  and  fe- 
loniously stealing,  arc  not  the  same  ;  for  in  common  parlance,  steal- 
ing does  not  always  import  'felony ;'  as  to  cut  and  carry  away  furze 
is  a  stealing,  but  not  a  felonious  stealing." 

But  Powell,  J.  said,  he  always  took  it,  that  stealing,  c>  vi  termi- 
ni, did  import  felony.  And  afterwards,  by  the  opinion  of  the  whole 
court,  the  plaintiff  had  judgment,  on  the  ground,  as  stated  in  the 
report,  of  all  the  later  authorities  (w). 

*From   this,  and   the  later  decisions  upon  this  subject,  [  *93  ] 
it  seems,  that  the  term  stealing  takes  its  complexion  from 
the  subject  matter  to  which  it  is  applied,  and  will  be  considered  as 
intended  of  a  felonious  stealing,  if  a  felony  could  have  been  commit- 
ted of  such  subject  matter  [1]. 

In  modern  construction.and  practice  little  doubt  can  arise  upon 
these  niceties  which  appear  in  former  times  to  have  afforded  abun- 
dant occupation  to  the  courts.     If,  from  the  plaintiff's  declaration, 

(0  1  Bol.  Ab.  70.  pi.  47.  (u)  6  M  id.  28. 


[1]  la  Dexter  v.  Tuber,  VI  Johns.  II.  289,  the  words  wi  re,  "  You  M  a  thief;  you 
Btole  hoop  poles  and  saw  logs  from  off  Del  land."     Th 

instructed  the  jury  that  if  the  defendant  meant  the  plaintiff  with  taking  tim- 

ber already  cut  into  poles  and  lu^*,  the  words  were  •  bnt  if  he  onlj  meant  to 

charge  the  cutting  and  carrying  away  timber  with  a  view  to  convert  it  in  I 
the  words  were  not  actionable.     The  jury  found  fur  the  defendant,  an  1  tin-  Court  refused 
to  set  aside   the  verdict;  Spkxckr,  J.  dissented.     See   his   dissenting  opinion    and   also 
Stokes  v.  Stuckcy,  1  McCord,  562. 

In  Findlay  v.  Bear,  8  Serg.  &  Rawle,  -"71 ,  i;  was  held  that  a  charge  of  having  stolen 
a  dog  is  not  actionable;  for  the  reason  tint  a  dog  is  of  th  it  kind  of  property  of  which 
felony  cannot  be  committed;  and  yet  for  killing  a  dog  without  good  cause  an  action  lies. 
See  Hinckley  v.  Emerson,  4  Cowen,  351. 


93  CRIMINAL  CHARGE. 

it  appear,  that  the  charge  of  stealing  could  not,  from  its  application, 
have  been  meant  to  impute  a  felonious  stealing:  as  if,  for  example, 
the  defendant  had  said,  "  You  stole  an  acre  of  my  land ;"  the  state- 
ment would  be  held  to  be  bad  upon  demurrer ;  if  it  appeared  upon 
the  trial  that  the  term  had  been  applied  in  a  sense  not  felonious,  the 
plaintiff  would  be  nonsuited;  and  finally,  if  after  verdict  for  the 
plaintiff,  it  appeared,  that  the  term  as  used  was  capable  of  a  feloni- 
ous sense,  the  verdict  would  be  supported. 

This  doctrine  is  applicable  to  every  other  case  where  doubtful 
words,  or  even  those  apparently  innocent,  derive  a  criminal  quality, 

either  from  context  or  collateral  circumstances. 
[  *94  ]  The  defendant  said,  "  Thou  (x)  art  a  clipper,  *and  shall 
be  hanged  for  it;"  and  the  court,  after  a  verdict  for  the 
plaintiff,  said,  that  the  words  should  not  be  taken  to  mean  a  clipping 
of  clothes,  but  a  clipping  of  money,  for  which  the  plaintiff  might 
be  hanged. 

So  for  the  words,  "  Thou  (t/)  art  a  clipper,  and  thy  neck  shall 
pay  for  it,"  an  action  was  held  to  be  maintainable ;  for  by  the  sub- 
sequent words  it  could  not  be  intended  of  any  other  clipping  than  of 
money. 

So  when  the  statutes  against  witchcraft  were  in  force,  the  defend- 
ant said,  "  Thou  (z)  art  a  witch,  and  I  will  make  thee  suffer  for  a 
witch."  After  verdict  for  the  plaintiff,  it  was  contended,  that  the 
words  were  not  actionable  ;  that  it  had  been  many  times  adjudged 
that  witch  alone  is  not  actionable  ;  and  that,. "  I  will  make  thee 
suffer  for  a  witch"  are  not;  for  it  is  not  said  suffer  death  ;  that  it 
might  be  intended  of  a  citation  in  the  Spiritual  Court,  which  was 
the  usual  way  before  the  statute ;  or  it  might  be  by  ducking  in  the 
water  as  the  common  people  used  to  try  those  suspected  of  witch- 
craft. But  it  was  answered  by  Rokesby  and  Neville,  Justices,  that 
the  words  shall  be  taken  as  they  are  usually  understood  among 
neighbors  in  the  country ;  to  suffer  is  intended  to  suffer 
[  *95  \  |  deatli ;  as  they  usually  *say,  How  many  suffer  at  this  As- 
sizes ?  which  is  intended,  suffer  death.  And  thereto 
Treby,  C.  J.  after  it  had  been  twice  moved,  inclined.  And  at  last 
judgment  was  given  for  the  plaintiff  by  Treby,  C.  J.,  and  Rokesby 
and  Neville,  Js. ;  Powell,  J.  being  of  a  contrary  opinion,  because 
words  shall  be  taken  in  mitiori  sensu,  and  the  word  suffer  is  wholly 
uncertain  what  manner  of  suffering  was  intended. 

(x)    Walter  v.  Beaver,  3  Lev.  1GG.     2  (y)  3  Lev.  166. 

Jo.  23-3.     Cro.  J.  255,  276.     1  Lev.  155.  (z)  3  Lev.  394. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  95 

The  defendant  («),  speaking  of  the  death  of  one  Daniel  Dolly 
said  to  the  plaintiff,  "  You  are  a  bad  man,  and  J  am  thoroughly  con- 
vinced that  you  are  guilty  ;  and  rather  than  you  Bhonld  want  a  hang- 
man, I  would  be  your  executioner."  After  verdict  and  judgment 
for  the  plaintiff,  the  defendant  broughl  a  writ  of  error  in  the  court 
of  King's  Bench,  assigning  as  two  grounds  of  error, — 

1st.  That  the  words  were  not  in  themselves  scandalous. 

2dly.  That  they  did  not  become  SO  by  reference  to  the  death  of 
D.  D. 

Lord  Mansfield,  in  affirming  the  judgment,  observed,  M  It  is  ai ; 
that  there  are  many  innocent  ways  by  which  one  man  may  oc< 
the  death  of  another  ;  therefore,   the  words,  'guilty  of 
the  death,'    do  not  in  themselves   'necessarily   import   a    [ 
charge  of  murder  ;  and  consequently,  as  no  particular  act 
is  charged   (which  in  itself  amounts  to  an  imputation  of  a  crime) 
the  words   are  defectively  laid.     What!   when    the  defendant  tells 
the  plaintiff  that  he  has  been  guilty  of  the  death  of  a  person,  is  Dot 
that   a  charge  and  imputation  of  a  very   foul    and   heinous  kind'.'1 
.Saying  that   such  an  one  is  the  cause  of  another's  death,  as  in  the 
case  in  2  Buls.   10,  11,  is  very  different;  because  a  physician  may 
be  the  cause  of  a  man's  death,  and  very  innocently:  but  the  word 
guilty  implies  a  malicious  intent,  and  can  be  applied  only  to  some- 
thing which  is  universally  allowed  to  be  a  crime.      But  the  defend- 
ant does  not  rest   here:  on   the  contrary,  in  order   to  explain   his 
meaning,  he   goes  on  and   says,   'and   rather   than   you   should    be 
without  a   hangman,  I  will  hang  yon.'     These   words  plainly  .-how 
what  species  of  death  the  defendant  meant,  and  therefore  in  them- 
selves manifestly  import  a  charge  of  murder." 

Where  the  words  merely  charge  the  plaintiff  with  being  deserving 
of  punishment  great  doubt  seems  to  have  1 n  entertained  wheth- 
er they  are  actionable,  and  there  are  many  authorities  both  ways. 

It  has  been  held,  that  an  action  lies  for  saying,  "  tf  (  b  ) 
you  had  your  deserts,  you  had  been  *hanged  before  now."         '97 
For  the  court  said,  it  should   be   intended    to   convey 
imputation  of  an  offence  for  which  the  penalty  of  death  was  due. 

So  the  words,  "He   (r)   hath   deserved    to   have   his  ears   nailed 

to  the  pillory."  were  adjmb  e  actionable.     But  for  the  words, 

M Thou  (d)  art  a  scurvy  bad  fellow,  and  hast  done  thai  for  which 
thou  deservest  to  be  hanged;"'  it  was  held,  that  no  action  could  be 

(a)  Peake  v.  Oldham,  Cowp.  275.  (c)  Cro.  ITiz.  884. 

(b)  Cro.  Eliz  62.  {d)  1  Viu.  Ab.  415,  pL  5. 


97  CRIMINAL  CHARGE 

maintained.  So  it  has  been  held,  that  the  words,  "Thou  (e) 
ahouldest  have  sate  on  the  pillory,  if  thou  hadst  thy  deserts,"  were 
not  actionable,  because  too  general.. 

\.  i  greater  degree  of  precision  has  been  required  in  modern 
times  than  formerly,  the  cases  last  cited  may,  perhaps,  be  considered 
as  the  better  authorities. 

If  however,  the  words  import  a  conviction  for  some  offence,  it 
seems  they  are  actionable. 

The  defendant  said,  "You  (/)  are  a  branded  rogue,  and  have 
held  up  your  hand  at  the  bar." 

It  was  held,  that  the  words  were  actionable,  since  they  imply  that 
the  plaintiff  was  branded  according  to  the  statute  (g-)  . 

So  words  or  signs  apparently  innocent  or  unintelligible,  may,  by 

explanatory  circumstances,  become  actionable.     The  de- 

[  *98  ]      fendant  said  of   the  *plaintiff,    "  He  (//)  is  a  healer  of 

felons  ;"  and  the  words  having  been  spoken  in  one  of  the 

western  counties,  wherein  "  a  healer  of  felons  "  signifies  a  concealer 

of  felons,  were  thus  explained,  held  to  be  actionable. 

So  the  words,  "  He  (i)  is  mainsworn,"  were  held  to  be  action- 
able, as  published  in  a  part  of  the  kingdom  where  they  were  under- 
stood'to  convey  a  charge  of  perjury. 

So,  generally,  in  regard  to  words  spoken  in  a  foreign  language, 
the  only  question  is,  whether  they  were  understood  by  the  hearers 
in  an  actionable  sense  ? — If  so  understood,  the  mischief  is  effected, 
and  the  cause  of  action  complete  (/c). 

Where  the  words  are  spoken  in  the  Welsh  language,  but  in  an 
English  county,  it  must  appear,  that  the  hearers  understood  Welsh; 
for  otherwise  the  court  will  not  intend  that  any  there  understood 
the  Welsh  tongue ;  and  then  it  was  not  any  slander  any  more  than 
if  any  one  spoke  slanderous  words  in  French  or  Italian  ;  in  which 
case  no  action  will  lie,  unless  it  be  averred,  that  some  one  there  (Z) 
understood  the  language  in  which  the  alleged  slander  was  conveyed. 
And  as  doubtful  or  apparently  innocent  words  may 
f  *99  ]  *by  circumstances,  be  shown  to  be  actionable  ;  so  may 
words  apparently  actionable  be  explained,  by  circumstan- 
ces, to  have  been  intended  and  understood  in  an  innocent  sense. 
Thus,  though  the  defendant  should  say,  "  Thou  art  a  murtherer," 
the  words  would  not  be  actionable,  if  the  defendant  could  make  it 

(e)  Vin.  Ab.  415,  pi.  10.    Mo.  243.  (»')  Hob.  126. 

(/•)      ii.  |5.  (A-)  1  Roll.  Ab.  74.  Cro.  Eliz.  496. 

(j/i   1  Jao.  c.  7.  (0  Cro.  Eliz.  865. 

(h)  Hob.  126.  Cro.  Eliz.  250.  Cart.  214. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  99 

appear  that  he  was  conversing  with  the  plaintiff  concerning  unlawful 
hunting,  when  the  plaintiff  confessed  that  lie  killed  several  hares 
with  certain  engines,  upon  which  the  defendant  said,  ••Thou  art  a 
murderer,"  meaning  a  murderer  of  hares  so  killed  (m)  [1]  [a  a]. 

Formerly  a  distinction  was  taken  between  saying,  "Thou  art  a 
thief,  for  thou  hast  stolen  such  a  thing,"  as  a  tree,  the  taking  of 
which  could  not  be  felonious,  and  the  saying,  "  Thou  art  a  thief, 
and  hast  stolen  such  a  thing;"  since  in  the  former  case  the  sub- 
sequent words  show  the  reason  of  calling  the  plaintiff  a  thief,  and 
that  no  felonious  imputation  was  meant ;  but  in  the  latter,  the  action 
lies  for  calling  him  a  thief,  and  the  addition  "  thou  hast  stolen,"  is 
another  distinct  sentence  by  itself,  and  not  the  reason  of  the  former 
speech,  nor  any  diminution  thereof  (w). 

*Little  stress,  however,  would  probably  be  now  laid    [  *100  ] 
upon  this  distinction,  as,  in  common  discourse,  and  is 
frequently  intended  to  mean  for. 

And  even  in  the  construction  of  legal  instruments,  instances  are 
not  unfrequent,  where  the  vulgar  and  obvious  acceptation  of  the 
word  has  been  preferred  to  its  strict  grammatical  signification  (o). 

Brittridge  brought  an  action  for  these  words,  "  Mr.  Brittridge  is 
a  perjured  old  knave,  and  that  is  to  be  proved  by  a  stake  parting 
the  land  of  H.  Martin  and  Mr.  Wright."  And  upon  motion  in  ar- 
rest of  judgment,  it  was  held,  that  although  the  words,  "  thou  art  a 

(m)  4  Co.  13.  ter;  and  though  the  words  were  doubtful, 

[a  <;]  The  words,  "  I  think  the  business  the  doubt  would  be  cured  by  the  finding  of 

ought  to  have  the  most  rigid   inquiry,  for  a  jury,  that  they  were  meant  in  that  sense. 

he  murdered  his  wife,  that  is,  he  adminis-  Ford  v.  Primrose,  5  D.  and  ft.  289. 

tered   improperly   medicines  to    her  for  a  (n)  Cro.  J.  114.  B.L.  N.P.6.   Hob.  Rep. 

certain  complaint,  which  was  the  cause  of  106.  Cro   Eliz.  857.     Hob.  77.    BrownL  2 

her  death,"  were  held  to  be  actionable,  as  God.  b.  211.   Hard.  1.   All.  31.  Sty.  66. 

importing  at  least  a  charge  of  manslaugh-  (o)  6  East,  4S6.  Mo.  422.    1  Wils.  140. 


[1]  So  where  an  action  was  brought  for  calling  the  plaintiff  a  highwayman,  robber 
and  murderer,  and  it  was  shown  that  tin-  words  were  spoken  in  reference  to  a  transac- 
tion in  respect  to  which  the  opprobrious  epithets  were  wholly  inapplicable,  an  1  were 
understood  by  the  by-standers  to  that  transaction,  it  was  held  that  an  action  could  not 
be  sustained.      Van  Rensselaer  v.  Dole,  1  Johns.  Cas.  L'7  >. 

Although  the  words  be  not  actionable  when  the  hearers  understand  the  ftcts  in  refer- 
ence to  which  the  words  are  spoken,  as  where  a  party  is  charged  with  having  kiile  I  the 
wife  of  the  speaker,  when  all  the  hearers  know  that  she  is  living;  they  are  actionable  if 
the  hearers  do  not  understand  the  circumstances  rendering  the  words  innocent.  In  such 
case  the  secret  intent  of  the  speiker  is  immaterial;  Henry  and  wife  v.  Power,  10  Mee- 
son  &  W.  564;  Hanklason  v.  Bilby,  16  Id.  442.  See  also  1  Bartey,  595;  3  Dana,  138; 
5  New  Hampshire,  R.  203. 

Vol.  I.  15 


100  CRIMINAL  CHARGE. 

perjured  knave,"  without  any  more,  would  have  been  actionable ; 
yet  that  upon  all  the  words  taken  together,  no  action  lay ;  for  the 
latter  words  extenuate  the  former,,  and  explain  his  intent,  that  he 
did  not  mean  any  judicial  perjury  ;  and  therefore  it  was  adjudged 
that  the  words  were  not  actionable.  But  it  was  said,  that  if  the 
plaintiff's  counsel  had  disclosed  the  truth  of  the  case  in  the  decla- 
ration, the  words  would  have  maintained  the  action  ;  for  the  truth 
of  the  case  was,  that  in  an  action  between  Martin  and  Wright,  the 
state  of  the  controversy  was,  whether  the  stake  stood  upon 

*101  ]    the  *land  of  the  one  or  the  other,  or  indifferently  as  a 
boundary  between  their  lands.      And  in  that  action  the 
plaintiff  was  sworn  as  a  witness ;  and,  by  the  pretence  of  the  plain- 
tiff, had  perjured  himself.     But  this  special  matter  was  not  disclos- 
ed, and  therefore  it  was  decided  for  the  defendant  (/?). 

Sir  Edward  Coke,  in  his  fourth  report,  observes,  that,  "  In  case 
of  slander  by  words,  the  sense  of  the  words  ought  to  be  taken,  and 
the  sense  of  them  appears  by  the  cause  and  occasion  of  speaking 
of  them  ;  for,  "  Sensus  verborum  ex  causa  dicendi  accipiendus  est." 

And  again,  "  God  forbid  that  a  man's  words  should  be,  by  strict 
and  grammatical  construction,  taken  by  parcels  against  the  manifest 
intent  of  the  party,  upon  consideration  of  all  the  words'  which  im- 
port the  true  cause  and  occasion,  which  manifest  the  true  sense  of 
them."  This  rule  is  so  clear,  and  so  well  established,  that  any  fur- 
ther illustration  of  it  would  be  nugatory;  and  the  questions  which 
may  arise,  upon  which  party  shall  the  onus  of  proving  or  disprov- 
ing the  injurious  intention  and  meaning  be  imposed  ;  and  how  shall 
the  defendant  best  avail  himself  of  explanatory  circumstances  in 
his  favor,  will  be  afterwards  considered  under  more  appropriate 
divisions. 

3dly.  From  the  mere  description  of  the  circumstances  constitut- 
ing the  offence. 
[  *102  ]  *In  the  older  cases,  much  difficulty  prevailed  with  re- 
spect to  the  actionable  quality  of  words  which  contained 
a  mere  enumeration  of  circumstances :  it  was  frequently  doubted, 
in  the  first  place,  whether  the  circumstances,  supposing  them  to  be 
true,  constituted  an  indictable  offence  ?  in  the  second,  whether  the 
imputing  such  a  misdemeanor  was  a  sufficient  ground  of  action  ? 

The  affirmative  of  the  latter  question  has  already  been  attempted 
to  be  shown.  With  respect  to  the  first  part,  it  may  be  proper  to 
advance  a  few  observations. 

{p)  4  Co.  18.    Yel.  10.  34,  34.     2  Rol.  Ab.  343.  Mo.  6C6. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  102 

In  considering  the  class  of  cases  referable  to  this  head,  where 
offences  have  been  charged  not  amounting  to,  but  connected  with, 
felony,  it  will  be  convenient  to  distribute  them  into  imputations 
charging, 

An  attempt  to  commit  a  crime. 

A  solicitation  to  commit  a  crime. 

Some  preparation  made  in  contemplation  of  the  commission  of  a 
crime. 

As  to  words  charging  an  attempt  to  commit  a  crime. 

In  the  case  of  Sir  (7)  Harbert  Croft  v.  Broivn,  Coke,  C.  J.  ob- 
served, that,  in  ancient  time,  "  voluntas  reputabatur 
pro  facto  ;"  and  that  if  a  *person  lay  in  wait  to  kill  an-  [  *103  ] 
other,  and  upon  his  resisting,  wounded  but  did  not  kill 
him,  it  amounted  to  a  felony  at  Common  Law,  and  the  offender  was 
ousted  of  his  clergy  ;  the  intention,  manifested  by  an  overt  act,  con- 
stituted a  felony. 

The  learned  judge  then  proceeded  to  intimate,  that  any  words 
charging  an  overt  act  done  in  pursuance  of  a  felonious  intention, 
would  be  actionable.  But  that  in  the  principal  case,  the  words, 
"  He  keepeth  men  to  rob  me,"  were  not  actionable,  since  they  did 
not  charge  any  waylaying  or  overt  act  done. 

But  the  words,  "He  (■/*)  sought  to  murder  me,  and  I  can  prove 
it,"  were  held  to  be  actionable. 

In  this  case  it  may  be  observed,  the  words  imported  more  than  a 
mere  inclination  to  murder;  since  the  term  soi/g-ht  is  shown  by  the 
latter  words  to  refer  to  some  overt  act  capable  of  proof. 

But  the  words,  "  Thou  (.*)  wouldcst  have  killed  me,"  it  was  held 
that  no  action  lay,  since  intention  only  was  charged. 

In  Muney's  case  (t),  Coke,  C.  J.  and  Houghton,  J. 
held  that  the  words,  "  Thou  art  a  knave,  *and  hast  laid    [   '1<>!   ] 
in  wait  to  kill  me  ;  and   thou  hast   hired  one  W.  to  kill 
me,"  were  not  actionable,  because  no  act  was  laid  to  be  done,  but 
an  intention  only  ;  and  that  a  mere  intent  is  not  punishable. 

It  is  remarkable,  that  the  lying  in  wait,  and  hiring  an  assassin  to 
murder  another,  should  be  considered  as  nothing  more  than  mere 
intention;  and  this  decision  seems  to  be  very  inconsistent  with  the 
subsequent  doctrine  of  Lord  Coke  in  Sir  Harbert  CrofCs  case  (11)  : 

(q)  3  Buls.  167.  Yin.  Ab.  440,  pi.  9. 

(r)  Cro.  Eliz.  308.  (0  2  Buls.  206. 

(s)   Dr.  Poe's  case,  vid.  2  Buls.  206.   1  (u)   3  Buls.  167. 


104  CRIMINAL  CHARGE. 

notwithstanding  therefore,  this  and  some  other  contradictory  author- 
ities, it  may  be  collected  from  a  general  view  of  the  cases,  that  the 
charging  any  attempt  to  commit  a  felony  is  actionable,  for  such  an 
attempt  constitutes  an  indictable  offence  (x). 

Where  the  words  charge  a  solicitation  to  commit  a  crime. 

The  defendant  said,  "  Mrs.  Margaret  Passie  sent  a  letter  to  my 
Mr.  and  therein  willed  hini  to  poison  his  wife."  After  judgment  for 
the  plaintiff  it  was  assigned  for  error,  that  the  words  were  not  ac- 
tionable ;  because  they  did  not  charge  any  act  done ;  and  that  it 
was  not  like  charging  the  plaintiff  with  lying  in  wo.it  to  commit  a 
murder ;  but  all  the  justices  and  barons,  besides  Kings-mill,  held, 

that  the  action  lay  (ij~). 
[  *105  ]        *The  defendant  said,  "  Tibbot  '(z)  and    one    Gough 
agreed  to  have  hired  a  man  to  kill  me."     And  judgment 
was  given  for  the  plaintiff  by  Wray,  C.  J.  and  Fenner,  J.  against 
the  opinion  of  Gawdy. 

The  defendant  said,  "  You  (a)  set  on  folks  to  murder  J.  S." 
And  Wylde,  J.  conceived  the  words  to  be  actionable,  since  the  of- 
fence was  indictable. 

The  defendant  said,  "  John  (6)  Leversage  would  have  robbed  the 
house'of  J.  S.  if  J.  D.  would  have  consented  unto  it.  He  persuad- 
ed J.  D.  unto  it  and  told  him  he  would  bring  him  where  he  should 
have  money  enough."  And  although  it  was  objected  in  arrest  of 
judgment,  that  the  plaintiff  could  receive  no  prejudice  from  the  words, 
which  did  not  impute  any  act  done,  the  plaintiff  had  judgment. 

The  defendant  said,  "  He  (c)  bade  J.  S.  to  steal  what  goods  he 
could,  and  he  would  receive  them."  And  it  was  held,  on  motion 
in  arrest  of  judgment,  that  the  words  were  not  actionable,  since 
they  merely  charged  the  giving  bad  advice,  and  no  act  done. 

But    in  Lady  Cockaine's  case  (d),  a  charge  of  hav- 
[  *106  ]    ing  solicited  another  to  commit  a  felony,  *was  held  to 
be  actionable.     And  in  Sir  Harbert   Croft's  case  (e)  it 
was  held,  that  to  say,  "  A.  did  hire  a  man  to  rob  me,"  would  be  ac- 
tionable. 

(x)  2  East,  6.  -  (c)  2  Jo.  157. 

(y)  Cro  Eliz.  747,  cited  by  Williams,  J.  (4)  Cro.  E.  49. 

Buls.  201.  (e)  3  Buls.   167.     So  per  Grose,  J.    2 

(z)   Cro.  Eliz.  East,  20,  an  action  lies   for  charging  the 

(a)    West  v.  Phillips,  Keb.  253.  plaintiff  with  having  solicited  a  servant  to 

(6)  Cro.  E.  710.  steal  the  goods  of  his  master. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  106 

Whoro  the  words  charge  some  preparation  made  in  contempla- 
tion of  the  commission  of  a  crime. 

When  a  man  does  an  act  in  itself  indifferent,  but  in  contemplation 
of  the  commission  of  crime  in  future,  (as  the  act  is  not  indictable,) 
an  imputation  of  it  can  scarcely  be  considered  as  actionable.  As  if, 
for  instance,  a  person  were  to  purchase  a  pistol,  with  the  intent  to 
commit  murder  at  a  future  opportunity,  the  act  would  not,  in  law, 
amount  to  an  indictable  offence,  though  it  might  be  a  good  ground 
for  binding  the  party  to  his  good  behavior  (/).  It  is  to  be  observ- 
ed, however,  that  in  Lady  (g)  Cockaine's  case,  the  words  charging 
her  with  having  solicited  a  pregnant  woman  to  kill  her  child,  were 
held  actionable  ;  because,  if  true,  there  was  cause  to  bind  her  to  her 
good  behavior.  The  words,  however  in  that  case,  were 
clearly  actionable  *upon  another  ground,  and  the  reason  [  *10T  ] 
given  is  insufficient,  since  it  appears,  from  a  variety  of 
decisions,  that  many  imputations  for  which,  if  true,  the  party  might 
be  bound  to  his  good  behavior,  are  not  actionable. 

The  defendant  said,  "  He  (Ji)  keepeth  men  to  rob  me."  And 
it  was  held,  that  the  words  were  not  actionable. 

After  some  conversation  about  robbing  a  house,  the  defendant 
said,  "  It  (0  was  T.  M.  (the  plaintiff)  and  J.  D.  that  were 
about  to  rob  E.  C.'s  house."  After  verdict  for  the  plaintiff,  it  was 
adjudged  by  Archer  and  Vaughn,  J.  for  the  defendant.  And  it 
was  said,  that  the  going  with  the  intent  to  lie  in  wait  to  kill  a  man 
was  not  indictable  ;  but  that  the  lying  in  wait  with  the  same  intent 
was  indictable. 

Upon  the  whole  it  seems,  that  where  the  words  merely  impute  an 
act  done  in  contemplation  of  the  future  commission  of  a  crime, 
they  are  not  indictable,  unless  it  appear  that  the  defendant  intend- 
ed to  charge  the  plaintiff  with  having  solicited,  or  conspired  with. 
others  for  the  purpose  of  committing  the  crime. 

Where   the    description  of  the    circumstances    is  precise,  little 
doubt  can  arise.     The  defendant  said,  "  You  {k)   have 
caused  this  boy  to  perjure 'himself."     And   the   words     [  '108    J 
were  held  to  be  actionable,  since  the  facts  charged  con- 
stitute the  offence  of  subornation  of  perjury. 

(/)  But  it  has  been  held,  that  the  pro-  (</)   Cro.  E.  49. 

curing  counterfeit  coin  with  intent  to  cir-  {h)  3  Bui*.  167. 

culate   it,  is  an  indictable  offence.     R.  v.  (i)   Freetn.  4G. 

Fuller,  R.  &  M.  C.  U.  COS.  (k)  Brownl.  2. 

15* 


108  CRIMINAL  CHARGE. 

So  where  the  defendant  said,  "You  (7)  have  bought  a  roan 
stolen  horse,  knowing  him  to  be  stolen." 

The  defendant  said,  "  He  (m)  caine  to  my  door  and  set  a  pistol 
to  my  breast,  and  demanded  money  of  me ;  and  I,  for  safeguard  of 
my  life,  gave  him  what  money  he  desired."  Roll.  C.  J.  observed, 
if  the  words  sound  to  charge  him  with  felony,  the  action  will  lie  ; 
and  three  of  the  Justices  decided  for  the  plaintiff. 

The  defendant  said  of  a  justice  of  the  peace  and  deputy  lieuten- 
ant for  the  county  of  Warwick,  "  I  have  heard  that  a  maid  of  J. 
K.'s  should  report,  that  he  being  sick  and  she  looking  through  a 
hole  of  the  door  where  he  then  lay,  saw  a  priest  (innuendo,  a 
popish  priest)  give  the  eucharist  and  extreme  unction  to  Sir  J.  K." 
It  was  moved  in  arrest  of  judgment,  that  these  words  did  not 
amount  to  calling  him  a  papist ;  since  it  did  not  appear  that  the 
priest  was  a  popish  priest,  unless  by  innuendo.  But  it  was,  after 
two  arguments,  resolved,  that  the  words  taken  altogether 
[  *109"  ]  were  actionable,  and  explained  one  *another ;  that  a 
priest  who  gives  the  extreme  unction  must  be  a  popish 
priest,  and  he  that  receives  it  a  papist ;  and  the  judgment  given 
for  the  plaintiff  in  the  Common  Pleas,  was  afterwards  affirmed  in 
the  King's  Bench  (n). 

The  defendant  said,  "  Thou  (o)  didst  violently,  upon  the  high- 
way, take  my  purse  from  me,  and  four  shillings  and  two  pence  in 
it:  and  didst  threaten  me  to  cut  me  off  in  the  midst,  but  I  was 
forced  to  run  away  to  save  my  life."  And  the  words,  which  in 
fact  amount  to  a  description  of  a  highway  robbery,  were  held  to  be 
actionable. 

III.  That  the  criminal  act  was  meant  to  be  imputed  to  the  plain. 

tiff. 

The  application  of  the  injurious  charge  to  the  plaintiff  may  be 
collected,  generally,  from  any  circumstances  which  indicate  the  in- 
tention of  the  defendant,  so  to  apply  his  words,  and  which  induced 
the  hearers  to  suppose  that  the  plaintiff  was  the  person  meant. 

Thus,  if  the  defendant  should  say,  "  I  (/>)  know  what  I  am,  and 

I  know  what  the  plaintiff  is  ;  I  never  did  such  an  act," 

[  *110  ]     (specifying  some  criminal  act,)  the  words  would  be  *act- 

ionable,  provided  the  hearers  understood  the  offence  to 

have  been  imputed  to  the  plaintiff  by  such  words. 

{I)  Brigg's  case,  God.  157.  (o)  Lawrence  v.  Wood  ward,  Cro.  Car. 

(m)  Neve  v.  Cross,  Sty,  350.  177. 

(n)  Sir  John  Knightly  v.  Marrow,  3  (p)  2  Lev.  150.     Snell  v.  Webling,  1 

Lev.  68.  Vent.  276. 


CIVIL  REMEDY— ACTIONABLE  WORDS.  110 

Where  a  charge  has  been  imputed  to  one  of  several,  without 
specifying  him,  it  has  been  held  in  many  of  the  older  cases,  that  no 
action  was  maintainable  by  any  of  them.  The  defendant  said  to 
three  men  who  had  given  evidence  against  him,  "  One  (7)  of  you 
is  perjured."  And  upon  an  action  brought  by  one  of  them,  it  was 
adjudged,  that  no  action  lay. 

And  so  it  has  been  held,  that  for  the  words,  "  One  of  my  broth- 
ers is  perjured."  Although  one  of  the  brothers  should  bring  an 
action,  and  aver  that  the  words  were  spoken  concern iii'_r  him,  yet 
on  account  of  the  apparent  uncertainty,  no  action  would  be  main- 
tainable (/•)  [1]. 

But  it  has  since  been  held,  that  for  the  words  "  A.  (a)  or  B.  mur- 
dered C."  either  A.  or  B.  might  bring  an  action. 

If  from  the  plaintiff's  statement  it  appear  that  he  could  have  been 
meant,  the  finding  of  the  jury  for  him  will  be  conclusive  as  to  the 
defendant's  application  of  the  charge  to  him,  for  otherwise  they 
could  not  have  given  him  damages. 

The  application  to  the  plaintiff  maybe  *ascertaincd  by        *111  ] 
a  variety  of  circumstances  ;  as  from  his  having  been  (V) 
the  subject  of  previous  (u)  conversation,  or  from  his  being  described 
byname,  or  by  any  other  means  which  are  sufficient   to  induce  the 
hearer  to  apply  the  offensive  imputation  to  the  plaintiff. 

The  plaintiff  was  a  justice  of  the  peace,  and  Receiver  of  the 
Court  of  Wards,  and  by  reason  thereof  received  great  sums  of  mo- 
ney for  the  king,  and  was  used  with  much  confidence  by  the  king  . 
and  the  defendant,  speaking  concerning  him  witli  one  Thomas  Whore- 
wood,  spoke  these  words,  "  Mr.  (x)  Deceiver  hath  deceived  the 
king."  After  a  verdict  for, the  plaintiff,  the  court,  on  motion  in  ar- 
rest of  judgment,  held,  that  the  action  well  lay  ;  that  the  words 
"  Mr.  Deceiver,"  were  an  ironical  allusion  and  nickname  to  his  office 
and  place  ;  and  that  if  such  crafty  evasions  should  be  admitted,  it 
would  be  an  usual  practice  to  slander  sans  punishment. 

(q)  Cro.  Eliz.  479.  (0   1  Roll.  Ab.  85.    1  Rol.  Ab.  75. 

(r)  l'er  Tanfield,   J.   in    Wiseman  v.  («)  Cro.  J.  657.  6  Bac.  Ab.  281. 

Wiseman,  Cro.  J.  107.  (x)   Sir  Miles  Fleetwood  v.  Curl,  Cro. 

(s)  10  Mod.  196.  Cart.  6G.  J.  667. 

[1]  In  Gidney  v.  Blake,  11  Johns.  R.  54,  the  uncertainty  was  as  great  as  in 
the  case  mentioned  in  the  text,  and  yet  the  action  was  held  to  lie.  The  words  weref 
•' your  children  are  thieves,"  The  declaration  stated  a  colloquium  with  the  father  of 
the  plaintiff,  of  and  concerning  his  children,  and  of  and  concerning  the  plaiutitf.  See  4 
Co.  17.  b. 


Ill  CRIMINAL  CHARGE. 

If  A.  B.  say  to  C.  D.  before  whom  E.  F.  is  walking,  "  He  (#) 
that  goeth  before  thee  is  perjured,"  an  action  lies,  if  it  appear  that 
none  but  E.  F.  was  walking  before  C.  D.  at  the  time  of  speak- 
ing. 

*112  ]  *In  the  case  of  J' Anson  (c)  v.  Stuart,  the  plaintiff 

was  thus  described  in  the  libel : — "  This  diabolical  char- 
acter, like  Polyphemus  the  man-eater,  has  but  one  eye ;  and  is  well 
known  to  all  persons  well  acquainted  with  the  name  of  a  certain 
noble  circumnavigator  (meaning  by  the  last  mentioned  words  to  al- 
lude to  the  name  of  the  plaintiff,  J'  Anson.*) 

From  these  (a)  and  a  number  of  similar  instances,  it  may  be 
laid  down  as  a  general  rule,  that  the  application  of  the  words  to  the 
plaintiff  is  a  matter  to  be  collected  by  the  jury,  from  the  particular 
circumstances  of  each  case. 

The  difficulties  which  occur  upon  this  point,  are  generally  of  a 
technical  nature,  and  consist  in  the  doubt,  whether  the  plaintiff  has 
so  stated  his  casein  the  declaration  as  to  show  that  the  conclusion 
could  properly  be  drawn  :  the  consideration  of  these,  however,  be- 
longs to  a  subsequent  division  of  the  subject. 

(y)  l'Rol.  Ab.  81.  (a)  Cro.  Eliz.  497.  Cro.  J.  444.    2  Bar- 

(z)  1  T.  R.  748.  nard.  Rep.    Hughes  v.  Winter,  Keb.  525. 


CHAPTER  II. 


When  an  infectious  disorder  is  imputed. 

Another  branch  of  cases  where  the  law  allows  an  action  to  be 
maintained,  without   special    damage,  consists  of  those 
*where  a  person  is  charged  with  having  an  infectious  dis-    [  *llo  ] 
ease,  the  effect  of  which  imputation,  if  believed,  would 
be  to  exclude  him  from  society. 

It  has  been  said  (a),  that,  "  Since  man  is  a  being  formed  for  socie- 
ty, and  standing  in  almost  constant  need  of  the  advice,  comfort, 
and  assistance,  of  his  fellow  creatures,  it  is  highly  reasonable  that 
any  words  which  import  the  charge  of  having  a  contagious  distemper 
should  be  in  themselves  actionable  ;  because  all  prudent  persons  will 
avoid  the  company  of  one  having  such  a  distemper. 

As  the  ground  of  proceeding  is  the  presumption  that  the  plaintiff 
will  be  wholly  or  partially  excluded  from  society  and  its  comforts, 
the  action  is  consequently  confined  to  the  imputing  those 
disorders   which  are  so  infectious  in  their  "nature  and    [  *114  ] 
pernicious  in  their  effects,  as  to  render  the  person  afflicted 
an  object  likely  to  be  shunned  and  avoided. 

Actions  for  words  of  this  description  seem,  in  the  absence  of  spe- 
cial damage,  to  have  been  confined  to  charges  of  leprosy  and  lues 
venerea.  For  though  it  was  held,  that  an  action  lay  for  Baying, 
"  He  (b)  buried  people  who  died  of  the  plague  in  his  house,"  it 
appears  that  special  damage  was  laid  and  proved. 

There  is,  however,  one  case  in  which  it  has  been  held,  thai  to 
charge  another  with  having  the  "  falling  (c)  sickness,"  18  actionable. 

So  great,  formerly,  was  the  dread  of  leprous  contagion,  that  an 
especial  writ  was  proved  for  the  removal  of  the  infected  object  to 
some  secluded  place,  where  he  might  no  longer  be  a  terror  to  socie- 
ty :  happily  this  writ  has  long  lost  its  use. 

(a)  6  Bac.  Ab.  212.  (c)  1  Rol.  4-1.  1.  7. 

(6)  Kit.  173,  b.  1  Com.  Dig.  252. 


114  WORDS  IMPUTING  DISEASE. 

It  seems,  however,  that  though  the  reason  has  in  some  degree 
ceased  to  operate,  an  action  will,  even  at  this  day,  be  sustainable 
for  a  charge  of  either  of  the  diseases  (d)  alluded  to. 

From  the  case  of  Villars  and  Monsley  (e),  it  appears, 
[  *115  ]  that  to  say  another  has  the  itch,  is  not  *actionable  ;  though 
such  an  accusation  would  be  actionable  if  written.  It  is 
to  be  remarked,  that  in  the  above  case,  both  Wilmot,  C.  J.  and 
Gould,  J.  seem  to  take  for  granted,  that  to  impute  the  plague  is 
actionable  ;  but  no  case  was  cited  in  which  this  point  has  been  ex- 
pressly determined. 

The  ground  of  the  action  being  the  presumption  of  the  plaintiff's 
exclusion  from  society,  no  action  will  lie  for  an  imputation  in  (/) 
the  past  tense,  for  such  an  assertion  does  not  represent  the  plaintiff, 
at  the  time  of  speaking,  to  be  unfit  for  society,  and  therefore  the 
substance  of  the  action  is  wanting  ;  and  it  was  observed,  in  the  case 
of  Carslake  v.  Mapledoram  (/),  that  this  doctrine  was  justified  by 
all  the  cases,  except  one,  and  that  loosely  reported. 

With  respect  to  the  terms  in  which  the  imputation  is  conveyed, 
as  in  other  cases,  they  may  either  expressly  and  by  their  own  power 
impute  the  disease,  or  by  the  aid  of  collateral  circumstances  may 
render  the  implication  unavoidable. 

Thus,  to  say  (§■)  a  man  has  the  leprosy,  or  to  call  him  leprous 
knave,  is  actionable :  the  term  leper  being  in  itself  a  clear  and  un- 
equivocal designation  of  the  speaker's  meaning. 
[  *116  ]  *Without  citing  the  disgusting  string  of  cases  upon 
this  subject,  with  which  the  older  reports  abound,  it  may 
be  deemed  sufficient  to  observe,  that  wherever  it  can  be  collected 
from  the  circumstances,  that  the  speakers  intended  the  hearers  to 
understand  that  the  person  spoken  of  was  at  the  time  of  speaking, 
afflicted  with  either  of  the  disorders  above  mentioned,  an  action 
may  be  maintained.  And  the  meaning  may  be  evidenced  either  by 
reference  to  the  mode  in  which  the  disease  was  communicated,  the 
symptoms  (h)  with  which  it  is  attended,  its  effects  upon  the  person 
(i)  or  constitution,  the  means  (A1)  of  cure,  the  necessity  of  avoiding 
(/)  the  person  infected ;  or,  in  short,  by  any  other  allusion  capable 
of  conveying  the  offensive'  imputation. 

(rf)   Carslake  v.   Mapledoram,  2  T.  R.  (h)  Holt.  5G3. 

473.  (i)  Cro.  J.   430.   144.     1  Vin.  Ab.  488. 

(0  2  Wils.  403.  Cro.  Eliz.  214.  289. 

(/)   Carslake  v.  Mapledoram,  2  T.  R.  (k)  Cro.  J.  430.     Cro.  Eliz.  648.     Roll- 

473.  Str.  1189.  Rep.  420. 

{</)  2  T.  R.  473.     Cro.  J.  144.             V  (0  Cro.  J.  430. 


CHAPTER   III. 


Where    the    imputation    affects   a   person   in  his    Office, 

Profession,  or  Business. 

Next  to  imputations  which  tend  to  deprive  a  man  of  his  life,  or 
liberty,  or  to  exclude  him  from  the  comforts  of  society, 
may  *be  rauked  those  which  affect  him  in  his  office,  pro-  [  *117  ] 
fession,  or  means  of  livelihood.  To  enumerate  the  dif- 
ferent decisions  upon  this  subject  would  be  tedious,  and  to  reconcile 
them  impossible ;  yet  they  seem  to  yield  a  general  rule,  sufficiently 
simple  and  unembarrassed;  namely,  that  words  are  actionable  which 
directly  tend  to  the  prejudice  of  any  one  in  his  office,  profession  (a), 
trade,  or  business. 

Observations  upon  this  class  of  cases  may  be  divided  into  those 
relating  to  the  grounds  of  the  action, — the  extent  of  the  action, — 
and  the  degree  of  certainty  and  precision  requisite  to  render  the 
words  actionable. 

Words  which  affect  a  person  in  his  office  generally  arc  actionable, 
whether  the  office  be  merely  confidential  and  honorary,  or 
be  productive  of  *emolument.  The  ground  of  action  in  [  *11S  ] 
the  two  cases,  seems,  however,  to  be  somewhat  different. 
Where  his  office  is  lucrative,  words  which  reflect  upon  the  integrity 
or  capacity  of  the  plaintiff  render  his  tenure  precarious,  and  are 
therefore  pro  tanto  a  detriment  in  a  pecuniary  point  of  view  :  but 
where  the  office  is  merely  confidential,  the  presumptive  loss  of  emolu- 
ment cannot  supply  the  ground  of  action. 

The  .whole  class  of  cases  in  which  magistrates  and  others  I  whose 
offices  are  merely  confidential  and  honorary)  have  been  allowed  to 
recover  a  pecuniary  compensation  for  words  relating  to  their  official 
character,  seems  to  rest  upon  more  dubious  principles  than  any  other 
in  which  a  remedy  is  given  without  proof  of  Borne  BpeciB  i  loss. 

For  as  even  the  loss  of  office  itself  would  not  be  attended  with  any 
loss  of  emolument,  such  as  would  naturally  result  from  deprivation 
of  liberty,  or  exclusion  from  society,  the  ovil  seem-  scarcely  to 

(o)  3  Wils.  186. 


118  SPECIAL  CHARACTER. 

admit  of  pecuniary  admeasurement.  Besides,  the  bad  consequences 
which  arise  from  degrading  the  magistracy,  arc  of  a  public  nature, 
and  are  therefore  rather  a  matter  of  criminal  than  of  civil  cogniz- 
ance, especially  as  the  damages  in  a  civil  action  are  not  considered 
to  be  of  a  penal  nature,  but  are  given  as  a  private  compensation  to 
the  party  injured.  It  has  long,  however,  been  fully 
[  *119  ]  established,  that  words  are  equally  actionable  *whether 
the  office  or  profession  to  which  they  relate  be  lucrative 
or  merely  confidential. 

So  that  words  spoken  of  Justices  of  the  Peace,  or  physicians,  or 
barristers,  are  frequently  actionable,  although  the  office  of  the  first 
be  merely  confidential,  and  the  latter  are  not  in  legal  contemplation 
entitled  to  demand  the  payment  of  fees  [1].  Where  the  office  is 
simply  confidential,  a  singular  distinction  has  been  taken  between 
words  imputing  want  of  ability  in  the  holder,  and  those  which  charge 
him  with  want  of  integrity. 

It  has  been  held,  that  to  charge  a  person  in  such  an  office  with 
any  corruption,  or  with  any  ill  design  or  principles,  is  actionable; 
but  that  to  represent  him  as  wholly  incompetent,  in  point  of  ability, 
to  hold  the  office,  is  not  a  slander  for  which  an  action  is  maintain- 
able. -The  reason  assigned  for  the  distinction  is  so  remarkable,  that 
it  may  be  proper  to  give  it  in  the  very  words  of  Lord  Holt. 

He  says  (6),  "  It  has  been  adjudged,  that  to  call  a  Justice  of  the 
Peace,  blockhead,  ass,  &c.  is  not  a  slander  for  which  an  action  lies, 
because  he  was  not  accused  of  any  corruption  in  his  employment,  or 
any  ill  design,  or  principle  ;  and  it  was  not  his  fault  that  he  was  a 
blockhead;  for  he  cannot  be  otherwise  than  his  Maker 
[  *120  ]  made  him  ;  *but  if  he  had  been  a  wise  man,  and  wicked 
principles  were  charged  upon  him  when  he  had  not  them, 
an  action  would  have  lain  ;  for  though  a  man  cannot  be  wiser,  he 
may  be  honestcr  than  he  is.  If  a  person  be  in  a  place  of  profit, 
and  he  is  accused  of  insufficiency,  he  shall  have  remedy  by  action. 

"  TMs  otherwise  if  he  be  only  in  a  place  of  honor  ;  though  even 
■there,  if  he  is  charged  with  ill  principles,  and  as  disaffected  to  the 
government,  he  shall  have  an  action  for  such  scandal  to  his  reputa- 
tion." 

(b)  Howe  v.  Prinn,  Holt,  653.  Salk.  694. 

[1]  In  New  York  it  is  held  by  the  courts  that  both  physicians  and  barristers  or  coun- 
sel may  maintain  suits  at  law  for  the  recovery  of  their  fees;  M'Pherson  v.  Cheadell,  24 
Wendell,  15;  Finch  v.  Gridley's  exrs.  25  Id.  469;  Stevens  and  Cogger  v.  Adams,  23 
Wendell,  57.  and  26  Id.  451,  S.  0. 


SPECIAL  CHARACTER.  120 

In  the  case  of  Onslow  (c)  v.  Home,  L.  C.  J.  Dc  Grey,  in  giving 
judgment,  observed,  "  It  was  objected  at  the  bar,  on  the  side  of  the 
defendant,  that  words  spoken  of  an  officer,  or  magistrate,  are  not 
actionable,  unless  they  carry  an  imputation  of  a  criminal  breach  of 
duty.  I  will  not  give  this  my  sanction,  because  1  think  for  imputa- 
tion of  ignorance  to  one  in  a  profession  or  office  of  profit,  an  action 
will  certainly  lie." 

After  it  had  once  been  established  that  a  magistrate  might  recover 
a  pecuniary  compensation  for  words  which  rendered  his  tenure  pre- 
carious, the  action  in  reason  and  principle  extended  itself  to  all  im- 
putations which  could  affect  that  tenure,  and  as  gross 
ignorance  is,  as  well  as  corruption,  a  *sufficient  cause  of       *121  ] 
deprivation,  it  is  difficult  to  say  why  an  imputation  of  the 
former  kind  should  not  be  actionable  as  well  as  one  of  the  latter ; 
the  malice  of  the  author,  the  falsity  of  the  charge,  and  its  probable 
consequences,  being  in  the  two  cases  precisely  similar.     It  may  be 
added,  that  the  distinction  is  inconsistent  with  the  class  of  cases  in 
which  barristers  and  physicians  (whose  situations  arc  in  law  consid- 
ered as  merely  honorary)  have  been  allowed  to  recover  for  words 
imputing  want  of  ability,  as  well  as  for  those  which  charged  them 
with  want  of  integrity. 

The  case  of  Bill  (d)  v.  Neal  was  a  precedent  for  the  opinion  of 
C.  J.  Holt,  in  the  case  of  Howe  v.  Prinn  (e).  There  Foster,  C. 
J.  and  Wyndhamand  Twysden,  Js.  decided  against  the  opinion  of 
Mallet,  J.  that  the  words, "  He  is  a  fool  or  ass,  a  beetle-headed 
justice,"  were  not  actionable.  But  the  three  justices  founded  their 
opinion  upon  the  cases  of  Sir  John  Ilollis  v.  Briscow  (/),  and  of 
Hammond  (§•)  v.  Kings  mill. 

In  the  former  case,  the  plaintiff  was  a  justice  of  the  peace  and 
deputy-lieutenant  of  a  county,  and  the  defendant  said  to  his  ser- 
vant, "  Your  master  is  a  base  rascally  villain,  and  is  nei- 
ther nobleman,  knight,  or  gentleman,  but  a  most  Villain-  [  "122  ] 
ous  rascal,  and  by  unjust  means  doth  most  villainously 
take  other  men's  rights  from  them,  and  keepeth  a  company  of 
thieves  and  traitors  to  do  mischief,  and  giveth  them  nothing  for  their 
labors  but  base  blue  liveries,  and  this  all  the  country  reports,  and 
other  good  he  doeth  not  any."  And  the  defendant  had  judgment, 
chiefly  on  the  ground,  that  the  words  were  to  be  construed  accord- 

(c)  3  Wila.  186.  (/)   Cro.  J.  58. 

{<{)  1  Lev.  52.  (g)  7  J.  1. 

(e)   Holt,  652. 

Vol.  I.  16 


122  CIVIL  REMEDY— ACTIONABLE  WORDS. 

ino-  to  the  now  exploded  doctrine  of  the  mitior  sensus,  for  which 
reason  the  case  can  scarcely  be  considered  as  an  authority.     In  the 
latter  case,  the  words  were,  "  He  was  a  debauched  man,  and  not 
fit  to  be  a  justice.''     But  it  appears  (A)  that  the  judgment  in  that 
case  was  given  for  the  defendant,  because  the  words  were  spoken 
of  a  time  past ;  and  Twysdcn,  J.  said,  that  it  would  have  been  other- 
wise if  the  words  had  been,  "  he  is  a  debauched  man.'''1     The  two 
cases,  therefore,  upon  which  reliance  was  placed,  in  the  case  of 
Bill  v.  Neale,  seem  to  be  no  sufficient  authorities  for  that  decision. 
Where  words  relate  to  a  man's  official  character,  the  danger  of 
exclusion  from  office  gives  rise  to  the  action.     It  was  held,  indeed, 
that  an  action  was  maintainable  for  the  words,  "  When  (i)  thou 
wert  a  justice  thou  wert  a  bribing  justice."     And  it  was  said,  that 
though  they  refer  to  a  thing  past,  yet  they  defame  him 
[  *123  ]    for  ever  in  other  people's  *opinions,  and  make  him  ac- 
counted  unworthy   to  bear  office   afterwards.     The  au- 
thority, however  of  this  decision  appears  to  be  very  suspicious,  and 
the   reason  given  would  apply  to  every  case  where  general  want  of 
integrity  is  imputed  to  a  private  individual,  for  it  may  by  possibility 
have  the  effect  of  preventing  him  from  being  put  into  the  commis- 
sion. 

C.  J.  De  Grey  (&),  in  giving  judgme  nt  in  Onslow  v.  Home,  said 
"  I  know  of  no  case,  wherever  an  action  for  words  was  grounded 
upon  eventual  damages,  which  may  possibly  happen  to  a  man  in  a 
future  situation,  notwithstanding  what  the  chief  justice  throws  out 
in  2  Vent.  366.,  where  he  is  made  to  say,  'That  where  a  man  had 
been  in  an  office  of  trust,  to  say  he  behaved  himself  corruptly  in  it, 
as  it  imported  great  scandal,  so  it  might  prevent  his  coming  into 
that  or  the  like  office  again,'  I  think  the  chief  justice  went  too  far" 

[1]. 

(h)  1  Vent.  50.     Sir  J.  Herle  v.  Os-         (i)  Yel.  153. 
good.  (fr)  3Wils.  188. 

[1]  In  Forward  v.  Mams.  7  Wendell,  204,  it  was  held  that  an  action  did  not  lie  for 
defamatory  words  spoken  in  reference  to  the  official  conduct  of  the  plaintiff  whilst  he 
held  a  place  of  public  trust  and -confidence,  where  the  words  were  spoken  after  the  ex- 
piration of  the  term  for  which  the  office  was  held;  but  in  Cramer  v.  Rigcjs,  17  Wendell, 
209,  an  action  for  a  libel  imputing  corrupt  conduct  to  the  plaintiff  whilst  holding  a 
public  station,  was  sustained,  although  the  libel  was  published  after  the  expiration  of 
the  term  of  service  of  the  plaintiff.  The  difference  in  the  decisions  rests  upon  the  dis- 
tinction that  an  action  for  a  libel  is  sustained  on  the  ground  that  it  exposes  the  party  to 
public  odium  and  disgrace,  whereas  for  words  not  actionable  in  themselves,  an  action 
does  not  lie  unless  special  damage  be  alleged  and  proved. 


SPECIAL  CHARACTER.  123 

And  whore  an  action  is  brought  for  words  spoken  of  a  barrister 
or  physician,  it  must  appear  that  he  practiced  (h  as  such  at  the 
time  the  words  were  spoken  ;  fur  otherwise  the  words  could  Dot  have 
affected  him  professionally.      A   doubt  has  been   raised,  whether 
damages  are  properly  recoverable  by  barristers  and  'phy- 
sicians for  words  relating  to  their  prof  essions,  since  their    [   '1-1    ] 
fees  are  merely  honorary,  and  n«n  demandable  in  a  court 
of  law  (m)  (2)  ;  the  actual  decisions,  however,  upon   the  Bubject, 
leave  no  doubt  as  to  their  right  to  recover  for  Buch   words  :  and  it' 
their  situations  be  considered  as  merely  confidential,  their   right  to 
recover  rests  upon  the  same  foundation  with   that  of  magistr 
and  others,  whose  offices  arc  of  a  similar  description. 

AS   TO   THE   EXTENT   OF   THE   ACTION. 

The  action  appears  to  extend  to  all  offices  of  trust  or  profit,  with- 
out limitation,  provided  they  be  of  a  temporal  nature.  Thus  it  has 
been  held,  that  an  action  is  maintainable  for  words  spoken  of  a 
churchwarden  («). 

It  has  been  said,  that  to  call  (o)  an  escheator,  coroner,  a  sheriff, 
attorney,  or  such  as  are  officers  of  record.  "  extortioner,"  an  action 
lies;  but  that  for  calling  a  bailiff  or  steward  of  abase  court,  who 
are  not  officers  of  record,  "  extortioner,"  no  action  li 
extortion  cannot  be  but  in  such  as  are  officers  of  record. 

There  seems,  however,  to  be  little  force  in  this  Mis-  L25    | 

tinction,  for  any  man  is  punishable  for  extortion  (//). 

It  was  held,  that  for  saying  of  the  deputy  of  Clarencienz,  king 
of  arms,  that  he  was  (7).  a  "  scrivener,  and  no  herald,"  an  action 
was  maintainable.  So  for  words  of  the  master  of  the  mint  (r) ;  of 
a  clerk  to  a  public  company  (*)  ;  of  a  town  clerk  (/)  of  a  steward 
(«)  of  a  court. 

But  where  the  defendant  (./•)  said  of  a  member  of  parliament, 

(/)  6  Bac.  Ab.  215.    lb.  210.    Sty.   231.  («)  Cro.  F.I.  358. 

Poph.  207.  (0  Bfott  28. 

(m)  GBac   Ab.  210.  (u)  1  Boll.  AL 

(n)  Sty.  338.    1  Vin.   Ab.   4G3.    Cro.  J.  (r)    Oiultm    v.     Home.    3    Wils.    177. 

339.  2  Buls.  213.  Cro.  E.  358.  Worda  whioh  arc  In  themselTea  aotioi 

(o)  Dal.  45.  pi.  35.  1  Vin.  Ab.  4G3.  arc  not  the  lew  bo  from  having  been  applied 

(71)  Dal.  43.  1  Vin.  Ab.  463.  to  a  candidate  to    serve    in    parliament. 

(5)  Cro.  El.  328.  BTorwood  v.  8ir  J.  .islley.     4  Bos.  ft  Pol 

(r)  Leo.  88.  '"•     But  see  note  D]«  PaS°  W*,  infra. 


[2]  See  note  [1]  page  l\'J,unte. 


125  CIYIL  REMEDY— ACTIONABLE  WORDS. 

"As  to  instructing  our  members  to  obtain  redress,  I  am  totally 
against  that  plan  ;  for  as  to  instructing  Mr.  Onslow  (the  plaintiff), 
we  might  as  well  instruct  the  winds,  and  should  he  (the  plaintiff) 
even  promise  his  assistance,  I  should  not  expect  him  to  give  it  us ;" 
after  verdict  for  the  plaintiff,  judgment  was  arrested,  and  it  was  ob- 
served by  C.  J.  De  Grey,  on  that  occasion,  that  the  words  did  not 
charge  the  plaintiff  with  any  breach  of  his  duty,  his  oath,  or  any 
crime  or  misdemeanor,  whereby  he  had  suffered  any  temporal  loss 

in  fortune,  office,  or  in  any  way  whatever. 
[  *126  ]  *The  action  extends  to  words  spoken  of  men  in  their 

profession,  as  barristers  (#),  attorneys  (z)  physicians,  (a) 
and  clergymen  (b) .  But  it  may  be  doubted  whether  words  spoken  of 
a  clergyman  would  be  actionable,  unless  he  held  some  benefice  or  pre- 
ferment, of  which  he  might  be  deprived  if  the  words  were  true.  The 
reason  usually  given  for  supporting  the  action  in  such  a  case,  is  that 
the  imputation  would  be  a  cause  of  deprivation  (c).  But  if  he  be  in 
actual  receipt  of  any  professional  temporal  emolument,  as  preacher, 
under  lecturer,  or  even  an  occasional  reader,  and  the  charge,  if  true, 
would  be  ground  of  degradation  from  holy  orders,  the  imputation 
wouldj  it  seems,  in  principle,  be  actionable. 

An  action  extends  to  words  affecting  a  person  in  the  particular 
art  by  which  he  gains  his  livelihood,  as  of  a  schoolmaster  (d).     It 
has  been  held,  indeed,  that  to  slander  a  schoolmistress,  who  taught 
children  to  read  and  write,  in  her  vocation,  was  not  ac- 
[  *127  ]      tionable.     The  authority  of  the  *dictum,  however,  ap- 
pears to  be  questionable.     It  was  decided,  in  the  case  in 
which  it  was  reported  to  have  been  delivered,  that  to  accuse  a  mid- 
wife (e)  of  ignorance  in  her  profession  was  actionable  ;  and  it  is 
difficult  to  say  upon  what  principle  a  schoolmistress  is  not  as  much 
entitled  to  the  protection  of  the  law  against  malicious  attacks,  by 
which  her  means  of  living  are  likely  to  be  impaired,  as  a  midwife. 
So  any  words  tending  to  injure  a  merchant  or  tradesman  are  ac- 
tionable ;  whether  they  reflect  upon  the  honesty  of  his  dealings,  his 
credit,  or  the  excellence  of  the  subject  matter  in  which  he  deals. 
To  say  of  a  cornfactor, "  You  are  a  rogue  and  a  swindling  rascal, 

(y)  2  Vent.  28.  to  say  of  a  clergyman,   you   are   an   old 

(z)  1  Lev.  297.  rogue,  rascal,  and  contemptible  fellow   it 

(a)  1  Roll.  Ab.  54.  per  Twisden,  1  Ven.  seems    is    not    actionable.     Musgrove    v 
21  Cro.  Car.  270.  Eovey,  Str.  940. 

(b)  Al.  G3.     3  Lev.  17.  1  Roll.  Ab.  -18  (c)  1  Roll.  58.  1.  80. 

Str.   649.     As   to  say  of  a  clergyman  he         (d)  2  Roll.  R.  72.  Het.  71. 
speaketh  lies  in  the  pulpit,  for  it  is  a  cause         (e)  1  Vent.  21. 
of  deprivation.     1   Holt.  58.  1.  30.     But 


SPECIAL  CHARACTER.  127 

you  delivered  me  100  bushels  of  oats,  worse  by  6s.  a  bushel  than   1 
bargained  for,"  are  actionable  without  proof  of  special  damage  (/")• 

And  the  action  seems  to  extend  to  words  Bpoken  of  a  person  in 
an//  lawful  employment,  bj  which  he  may  '.rain  his  livelihood. 

The  defendant  said  (g»),  "  Thou  hast  received  money  of  the  king 
to  buy  new  saddles,  and  hast  cozened  the  king,  and 
bought  old  saddles  for  the  'troopers."  And  tie- words  *128  | 
were  held  to  be  actionable  ;  for  it  was  said,  it  was  nol 
material  what  employment  the  plaintiff  held  under  the  king,  if  he 
might  loose  his  employment  and  trust  thereby,  and  that  it  was  im- 
material whether  the  employment  was  for  life  or  for  years. 

The  defendant  (//)  said  of  a  person  employed  by  the  under  post- 
master to  carry  about  post  letters,  on  which  he  had  a  profit,  "  Be 
has  broken  up  letters,  and  taken  out  bills  of  exchange."  After 
verdict  and  judgment  for  the  plaintiff,  one  cause  of  error  assigned 
was,  that  no  action  would  lie  for  scandalizing  such  an  employment  ; 
and  Hale  was  of  opinion,  chiefly  from  the  quality  of  the  employment . 
that  the  judgment  ought  to  be  reversed  ;  for  he  said  that  a  man 
should  not  speak  disparagingly  of  his  cook  or  groom,  but  an  action 
would  be  brought,  if  such  action  could  be  maintained. 

The  humility  of  the  employment  or  occupation  seems,  however, 
to  be  no  objection  to  the  action  either  in  law  or  reason  ;  and  it  has 
long  been  clearly  established,  that  an  action  is  maintainable  for  ma- 
licious misrepresentations  of  the  characters  of  menial  servants, — a 
subject  which  will  afterwards  be  more  fully  considered. 

In  the  case  of  Seaman  v.  Big-q-  (t),  in  the  reign  *of  [  *12 
Cha.  I.,  it  was  held,  that  the  words,  "  Thou  art  a  coz- 
ening knave,  and  hast  cozened  thy  master  of  a  bushel  of  Barley," 
spoken  of  a  servant  in  husbandry,  were  actionable  :  and  the  court 
said,  that  though  true  it  is,  generally,  an  action  will  not  lie  for  call- 
ing one  cozening  knave,  yet  where  they  be  spoken  of  one  who  i-  a 
servant,  and  accomptant,  ami  whose  credit  and  maintenance  depends 
upon  his  faithful  dealing,  and  he  by  such  disgraceful  words  i^  ,1,.. 
prived  of  his  livelihood  and  maintenance,  there  is  good  reason  it 
should  leave  an  action  for  loss  of  his  credit  and  means.  So  the 
words,  "  lie  (!c)  is  a  cheating  knave,"  applied  to  a  lime-burner  in 
his  employment,  have  been  deemed  to  be  actionable. 

(/)    Thomas  v.    Jackson,  3   Bingham,         (/i)  4  Vent.  267. 
104.  (0  do.  Car,  I-1". 

{S)  Mar.  82.     1  Tin.   Ab.  465.   pi.  19.         (A)  1  Lev.  115.     Terry  v.  Hooper. 
Sir  R.  Greenfield's  case. 

16* 


129  CIVIL  REMEDY— ACTIONABLE  WORDS. 

But  a  jobber  (/)  or  dealer  in  the  public  funds,  is  not  considered 
as  a  known  trader,  and  possessing  a  character  as  such. 

It  does  not  appear  to  be  necessary,  that  the  party  should  gain  his 
living  in  the  character  to  which  the  slander  is  applied  but  it  is  suffi- 
cient if  he  habitually  act  in  that  character,  and  derive  emolument 
from  it. 

The  rule,  however,  does  not  seem  to  extend  to  representations, 

whicli  affect  nothing  more  than  casual  instances,  in  which 

[  *130  ]    the  plaintiff  has  assumed  *such  a  character.     So  that 

words  misrepresenting  the  value  of  a  horse,  or  particular 

piece  of  furniture,  which  the  proprietor  wishes  to  dispose  of,  would 

not  be  actionable,  unless  some  special  damage  resulted  from  them. 

Next  as  to  the  degree  of  certainty  and  precision  requisite  to 
make  the  words  actionable. 

The  only  question  arising  upon  this  point  seems  to  be  this,  Do 
the  words  in  any  degree  prejudice  the  plaintiff  in  his  office,  profes- 
sion, or  employment  ?  If  they  do,  they  are  actionable  ;  the  quan- 
tum of  damage  being  a  mere  question  of  fact  for  the  consideration 
of  the  jury.  Words  in  general  belonging  to  this  class  relate  cither 
to  the  plaintiff's  integrity,  his  knowledge,  skill,  or  diligence,  his 
credit,-  or  to  the  subject  matter  in  which  he  deals. 

The  effect  of  such  imputations  will  be  separately  considered. 

To  impute  want  of  integrity  to  any  person  who  holds  an  office  of 
trust  or  of  profit  is  actionable  :  as  to  say  of  a  judge  (?«),  that  "  His 
sentence  was  corruptly  given"  [1]. 

Or  of  a  justice  of  the  peace  (w),  "I  have  often  been  with  him 
for  justice,  but  could  never  get  anything  at  his  hands  but  injus- 
tice" [2]. 
[  *131  ]        *Or,  "  He  covereth  and  hideth  felonies  (o),  and  is  not 
worthy  to  be  a  justice  of  the  peace."  [a  a] 

(t)  2  Bos.  &  Pul  284.  villain,  and  a  liar,"  spoken  of  a  justice  in 

(m)  Cro.  Eliz.  305.  the  execution  of  his  office,  are  actionable, 

(n)  Cro.  Car.  14.  for  they   import   a  charge  of  acting  cor- 

(o)  4  Rep.  16.  ruptly  and  partially.     Aston  v.  Blagrave, 

[a  a]  The  words,  "  you  are  a  rascal,  a     Str.  617. 

[1]  See  Chaddock  v.  Brirjys,2>  Mass.  R.  253,  per  Parker,  C.  J.;  and  Chipman  v. 
Cook,  2  Tyler,  456. 

[2]  In  Lindsey  v.  Smith,  7  Johns.  R.  360;  an  action  was  sustained  for  the  words 
«'  Lindsey  had  been  feed  by  Abner  Wood,  and  I  could  do  nothing  when  the  magistrate 
was  in  that  way  against  me.'  To  render  the  words  actionable,  however,  they  must  be 
spoken  of  the  plaintiff  in  his  official  character  or  conduct.  Oakley  v.  Farrington,  1 
Johns.  Cas.  129. 


SPECIAL  CHARACTER.  131 

Where  a  person  holds  an  office  or  situation,  in  which  great  trust 
and  confidence  must  be  reposed  in  him,  words  which  impeach  his 
integrity  generally,  though  they  contain  no  express  reference  to  his 
office,  are  actionable  ;  since  they  must  necessarily  attach  to  him  in 
his  particular  character,  and  virtually  represent  him  as  unlit  to  hold 
that  office  or  situation. 

Thus  it  bus  been  held,  that  to  say  of  a  bishop,  "  He  is  a  wicked 
man  Qp),"  is  actionable. 

The  defendant  said  of  a  justice  of  the  peace  and  deputy  lieuten- 
ant (7/),  "He  is  a  Jacobite,  and  for  bringing  in  the  Prin 
Wales  and  popery."  And  the  words  were  held  to  be  actionable, 
though  it  did  not  appear  that  the  speaker  applied  the  words  to  his 
offices,  because  without  any  such  application,  they  imputed  such 
religious  opinions  and  political  principles,  as  .rendered  him  in  law 
unfit  for  those  situations. 

So  where  the  defendant  said  of  the  plaintiff,  who  was  a  justice  of 
the  peace  (r),  "  I  am  in  danger  of  my  life,  my  blood  is  sought,  and 
I  was  like  to  have  been  murdered;  I  was  at  Sir  J. 
Harper's  (the  plaintiff's)  house,  and  John  Harper  *drew  j"  *132  ] 
me  forth  to  see  a  gelding  in  the  stable,  and  then  Thomas 
Beaumond,  Sir  H.  Beaumond's  son,  did  throw  his  dagger  at  me 
twice,  and  thurst  me  through  the  breeches,  twice  with  his  rapier  to 
have  killed  me,  all  this  was  done  by  the  instigation  of  Sir  J.  Harper, 
and  I  can  prove  it." 

In  this  case,  although  no  misconduct  in  office  was  particularly 
pointed  out,  it  was  held  that  the  action  well  lay  ;  the  instigation  to 
do  such  an  outrageous  act  being  against  the  plaintiff's  oath,  and  a 
great  misdemeanor,  for  which  he  was  liable  to  fine  and  to  be  put  out 
of  the  commission. 

The  defendant  said  to  the  plaintiff,  who  was  one  of  the  attorneys 
or  clerks  of  the  King's  Bench,  and  sworn  to  deal  without  corruption 
in  his  office,  "  You  are  well  known  to  be  a  corrupt  man,  and  to  deal 
corruptly."  And  upon  giving  judgment  for  the  plaintiff,  it  was 
said,  quod  sernw  relatus  ad  personam,  inteUigi  debit  dc  eunditiunc 
persona;  Cs). 

The  defendant  said  of  the  plaintiff,  who  was  an  attorney?  general- 
ly (£),  "  He  is  a  common  barrator."  After  verdict,  though  it  was 
objected,  that  the  words  were  not  actionable,  having  been  spoken 

(p)  2  Mod.  159.  moml,  Cr.  J.  5G. 

(q)  How  v.  Prinn,  Holt,  652.  (s)  4  Itcp.  10. 

(r)  Sir  J.  Harper  v.   Francis   Beau-        (0  Cro.  Car.  198, 


132  CIVIL  REMEDY— ACTIONABLE  WORDS. 

of  the  plaintiff  as  a  common  person,  and  not  in  relation 
[  *133  ]  to  his  office,  yet  the  court  held  *that  the  action  was  main- 
tainable ;  for  it  is  a  great  slander  to  an  attorney  to  be 
called  and  accounted  a  common  barretor,  who  is  a  maintainer  of 
brabbles  and  quarrels,  and  said  that  words  are  to  be  construed 
secundum  condilionem  personarum  of  whom  they  are  spoken. 

The  defendant  said-  of  an  attorney  («),  "  Thou  art  a  false 
knave,  a  cozening  knave,  and  hast  gotten  all  that  thou  hast  by  coz- 
enage, and  thou  hast  cozened  all  that  have  dealt  with  thee."  And 
the  court  held  that  the  words  were  actionable,  as  touching  the 
plaintiff  in  his  profession. 

An  attorney  brought  an  action  for  the  words  (re),  "  I  have  taken 
out  a  judge's  warrant  to  tax  Phillip's  (the  plaintiff's)  bill,  I  '11  bring 
him  to  book,  and  shall  have  him  struck  off  the  roll."  Lord 
Kenyon,  C.  J.  ruled,  at  nisi  prius,  that  the  words  were  not  ac- 
tionable ;  and  added,  had  the  words  been,  "  He  deserves  to  have 
been  struck  off  the  roll,"  they  would  have  been  actionable.  With 
respect  to  this  distinction,  it  may  be  proper  to  suggest  a  doubt, 
whether  the  words  in  the  principal  case  cited  would  not  in  common 
acceptation  convey  to  the  hearer  the  same  meaning  with 
[  *13'4  ]  the  words  which  the  learned  judge  *is  reported  to  have 
deemed  to  be  actionable,  since  they  seem  as  clearly  to 
evince  the  opinion  of  the  speaker,  that  the  plaintiff  deserved  to  be 
struck  off  the  roll,  and  no  one  would  choose  to  employ  an  attorney 
who  made  exorbitant  charges. 

Words  imputing  dishonesty  to  a  tradesman,  it  seems,  are  not  ac- 
tionable, unless  they  be  spoken  with  reference  to  trade.  So  that 
to  call  (?/)  a  tradesman  a  cheat,  generally,  has  been  held  not  to  be 
actionable.  But  otherwise  to  say,  "  He  (2)  keeps  false  books ;" 
for  the  words  evidently  relate  to  his  course  of  trading  [1].  So  to 
call  a  tradesman  a  rogue  (a)  or  a  cheat,  with  reference  to  his 
trade,  is  actionable.     But  to  say  generally  of  such  a  person,  "  Thou 

(w)  Cro.  Jac.  586.  (z)  Holt,  R.  39. 

(x)  Phillips  v.  Jansen,  2  Esp.  624.  (a)  Burr.  1688. 

(y)  3  Salk.  326. 


[1]  Words  charging  the  keeping  false  books  are  actionable  when  spoken  of  a  mer- 
chant, Backus  v.  Richardson,  5  Johns.  R.  476;  or  of  a  blacksmith,  Bxirlch  v.  JVicker- 
son,  17  Id.  217;  but  not  when  spoken  of  a  sawyer,  Raihbun  v.  Emigh,  6  Wendell,  407. 
The  latter  case  however,  manifestly  proceeded  on  the  ground  that  the  business  of  a  saw- 
yer did  not  require  the  giving  of  credit  and  keeping  of  books,  for  it  was  admitted  that 
in  such  cases  the  words  would  be  actionable. 


SPECIAL  CHARACTER.  134 

(&)  hast  no  more  than  what  thou  hast  got  by  cozening  and  cheat- 
ing,!' has  been  (c)  held  not  to  be  actionable. 

It  may,  however,  be  doubted,  whether  there  is  any  solid  dis- 
tinction between  these  cases,  since  every  tradesman's  livelihood  de- 
pends in  some  measure  upon  his  general  character  for  honesty  and 
integrity  ;  and  it  is  difficult  to  suppose,  that  B  general  imputation 
of  dishonesty,  if  believed,  would  not  operate  to  his  pre- 
judice. *It  seems  that  some  degree  of  trust  and  con-  [  •135  ] 
fidence  must  be  reposed  in  the  plaintiff,  in  order  to  ren- 
der words  reflecting  upon  his  character  for  integrity  actionable. 
Thus  the  words  of  a  carpenter  (d),  "  He  has  charged  Mr.  An- 
drews for  forty  days'  work,  and  received  the  money  for  the  work, 
that  might  have  been  done  in  ten  days,  and  he  is  a  great  rogue  for 
his  pains,"  were,  after  verdict,  held  not  to  be  actionable. 

The  distinction  seems  to  be  this  :  Where  great  confidence  must 
necessarily  be  reposed,  as  in  an  attorney  or  superintendent,  words 
generally  reflecting  upon  his  character  are  actionable  ;  but  where 
mere  ordinary  confidence  is  reposed,  in  the  common  courts  of  hon- 
est dealing,  as  that  a  tradesman  shall  charge  a  fair  price  for  his 
goods,  or  an  artificer,  surveyor  or  mechanic  for  his  labor,  the  law 
holds  that  the  words  are  not  so  injurious  as  to  bear  an  action  unless 
they  are  applied  to  the  plaintiff's  trade  or  business  with  certainty 
and  precision. 

So  where  the  office,  profession,  or  employment  of  the  plaintiff,  re- 
quires great  talent  and  high  mental  attainments,  general  words,  im- 
puting want  of  ability,  are  actionable  without  express  reference  to 
his  particular  character,  for  they  necessarily  include  an  ability  to 
discharge  the  duties  of  such  a  situation ;  but  where  the 
employment  *is  of  a  mere  mechanical  nature,  the  words  |  136  ] 
to  be  actionable  must  be  applied  to  it  clearly  and  un- 
equivocally. 

Thus  to  say  of  a  barrister  (c),  generally,  that  he  is  a  M  dunce," 
is  actionable,  the  word  dunce  being  commonly  taken  to  mean  a  per- 
son of  dull  capacity  who  is  not  fit  to  be  a  lawyer  [1]. 

So,  to  say  of  a  physician  (/),  that  he  is  "  no  scholar,"  is  action- 
al  12  Mod.  307.  (c)  Peard  v.  Johnu,  Cro.  Car.  I 

(c)  12  Mod.  307.  (/)  6   Hi,-.   Ah.   215.  1   Roll.   Ab.    54- 

(d)  Lancaster  v.  French,  Str.  797.  Cro.  Car.  270. 

[1]   But  when  the  words  only  impute  ignorance  or  want  of  skill  in  a  particular  suit, 
they  are  not  per  se  actionable,  Foot  v.  Broun,  8  John9.  R.  01. 


136  CIVIL  REMEDY— ACTIONABLE  WORDS. 

able,  a  learned  education  being  considered  to  be  an  essential  quali- 
fication in  the  medical  profession. 

To  say  of  a  servant,  that  he  is  a  "  lazy,  idle,  and  impertinent  fel- 
low," is  actionable  ;  for  these  words,  though  spoken  without  express 
reference  to  his  service,  cannot  but  affect  his  character  as  a  servant, 
as  no  one  would  be  willing  to  employ  a  person  of  idle  and  imperti- 
nent habits. 

In  general,  however,  the  words  must  be  spoken  with  reference  to 
the  particular  situation  of  the  plaintiff  in  which  case  they  are  action- 
able if  they  impute  any  want  of  knowledge,  skill,  or   diligence,  in 
the  exercise  of  his  office  or  avocation  :  as  to  say  of  an  apothecary  («•) 
"  It  is  a  world  of  blood  he  has  to  answer  for  in  this  town  :  through 
his  ignorance  he  did  kill  a  woman  and  two  children  at 
*  *137  ]   Southampton;  he  did  kill  J.  P.  *at  Petersfield  ;  he  was 
the  death  of  J.  P.:  he  has   killed  his  patient  with  phy- 
sic." 

So  (Ji)  where  the  defendant  said  of  a  midwife,  "  Many  have  per- 
ished for  her  want  of  skill." 

The  words  spoken  of  a  watchmaker  were,  "  He  (i)  is  a  bungler, 
and  knows  not  how  to  make  a  good  piece  of  work."  After  verdict 
for  the  plaintiff,  the  words,  on  motion  in  arrest  of  judgment,  were 
held  by  the  court  not  to  be  actionable,  not  having  been  laid  to  be  of 
the  plaintiff's  trade,  but  it  was  said  that  had  the  words  been,  "  he 
knows  not  how  to  make  a  good  watch,"  they  would  have  been  action- 
able. It  may,  however,  be  doubted  whether  this  case  would  not  now 
meet  with  a  different  decision  ;  the  point  upon  which  the  court  gave 
judgment,  was  in  a  great  measure  technical ;  and  indeed  the  averment 
that  the  words  were  spoken  in  derogation  of  the  plaintiff's  workman- 
ship, seems  scarcely  to  be  neces  sary,  for  if  it  were  believed  that  the 
plaintiff  was  a  bungler,  and  could  not  make  any  piece  of  work  well, 
how  could  it  be  supposed  that  he  could  make  a  good  watch,  a  piece 
of  work  requiring  very  considerable  skill  and  dexterity  [1]. 

(g)    Tatty  v.  Alncin,  11  Mod.  221.  (i)  Redman  v.  Pyne,  1  Mod.  19. 

(/t)  Flower's  case,  Cro.  Car.  211. 

[1]  In  Tobias  v.  Harland,  4  Wendell,  517,  the  plaintiff  being  a  dealer  in  patent 
lever  watches,  made  at  a  particular  manufactory,  the  defendant,  a  dealer  in  the  same 
article  made  at  another  factory,  speaking  of  the  watches  in  which  the  plaintiff  dealt, 
said  they  were  bad,  and  inferior  to  the  watches  in  which  he  dealt.  Held  on  demurrer 
that  the  action  did  not  lie;  that  to  render  words  depreciating  an  article  in  which  another 
deals  actionable  per  se,  they  must  import  deceit  or  malpractice  in  the  making  or  vend- 
ing. 


SPECIAL  CHARACTER.  L37 

The  law  has  shown  great  tenderness  in  protecting  mer- 
chants *and  traders  against  imputations  upon  their  credit,  [  *138  ] 
which  if  believed  must  necessarily  operate  to  their  seri- 
ous prejudice.     Formerly  (A),  indeed,  it  was  held  that  the  words, 
to  support  an  action,  must  import  bankruptcy:    this  doctrine  has, 
however,  long  been  abandoned  (/),  and  it   seemc   that  such   words 
spoken  of  a  person  in  any  business  are  now  considered  actionable. 
And  it  is  not  essential  to  the  action,  that  the  words  should  impute 
want  of  credit  at  the  time  of  speaking  them.     The  defendant  .-aid, 
"He(w)  came  a  broken  merchant  from  Hamburgh;"   and  the 
words  were  held  to  be  actionable,  since  the  plaintiff  was  charged 
with  having  been  once  broken  et  qui  semel  est  mains  $i  mpt  r  pro- 
sumitur  esse  mains  ineodem  genere,  and  that  they  were  a  can 
discrediting  the  plaintiff  in  his  trade,  and  of  injuring  him  in  his  cred- 
it, which  was  a  great  means  of  gain.     And  it  is  nol  necessary  that 
the   words  should  be   spoken   with   express  reference  to  the   plain- 
tiff's trade,  since  a  general  charge  of  want  of  credit  necessarily 
includes  the  particular    one,  and  is  equally    pernicious 
with  a  more  precise  *allegation,  thus  to  say  generally  of  [  139  ] 
a  merchant,  that  he  is  "  broken,'"  is  actionable,  these  be- 
ing common  and  vulgar  words  of  one  who  fails  in  his  credit  and  be- 
comes a  bankrupt.     Words  of  this  class  are  actionable  when  applied 
to  a  person  carrying  on  a  business  purely  mechanical,  so  that  to  call 
a  dyer  (n)  bankrupt  knave,  is  actionable  [1]. 

And  any  words  which  in  common  acceptation  imply  want  of  cred- 
it are  sufficient,  as  to  say  of  a  tailor  (p)  "  1  heard  you  were  run 
away."  Formerly,  indeed,  it  was  held  that  to  call  a  trader  "  bank- 
ruptcy knave  (p)"  was  not  objectionable  ;  but  the  distinction  be- 
tween words  adjectively  spoken,  and  those  containing  an  express 
and  direct  allegation,  have,  as  has  already  been  observed,  been  long 
deservedly  disregarded. 

So,  to  say  of  a  stock-broker  (<y),  that  he  is  "a  lame  duck,"'  is 
actionable. 

(k)  Holt.  39.  («)  Ci 

(l)  See  Reedy.  Hudson,  1  Ld.Rfty.610  (o)  Davit  v.  Lewis,  1  T.  11-17. 

Sovthamv  Allen,  Sir  T.  Ray.  281.    Whit-  (/>)  Cro  3.  845, 

tinglon  v.  Gladwin,  5  B.  aud  C.  160.  (<;)  Morris  v.  Langdale,2  B.  &  P.  B4. 

(hi)  Saycro/t  v.  Dunker,  Cro.  Car.  317. 


[1]  The  action  has  been  held  to  lie  for  similar  words  spoken  of  a  drover,  Lewis  t. 
Hawley,  2  Day,  195;  also  of  a  brewer,  Hall  v.  Smith,  1  Maule  aud  BeL  287. 


139  CIVIL  REMEDY— ACTIONABLE  WORDS. 

So  of  a  trader,  "  You  are  a  sorry  pitiful  fellow  and  a  rogue,  and 
compounded  your  debts  for  os.  in 'the  pound  (V)." 
[  *140  ]        So  where  the  defendant  said   (5),  "All  is  not  *well 
with  Daniel  Vivian  ;  there  are  many  merchants  who  have 
lately  failed,  and  I  expect  no  otherwise  of  Daniel  Vivian." 

So,  to  say  of  a  pawnbroker  (£),  "  He  is  a  broken  fellow." 

To  a  milliner  (n),  "You  are  not  worth  a  farthing." 

So  though  words  merely  import  the  speaker's  opinion ;  as  where 
the  defendant  said  (2;),  "  Two  dyers  are  gone  off,  and  for  ought  I 
know  Harrison  will  be  so  too  within  this  time  twelvemonth." 

So  where  defendant  said  to  an  upholsterer  (//),  "You  are  a  sol- 
dier, I  saw  you  in  your  red  coat  doing  duty  ;  your  word  is  not  to 
be  taken :"  the  words  were  held  to  be  actionable,  it  being  a  com- 
mon practice,  at  the  time  they  were  spoken,  for  traders  to  protect 
themselves  against  their  creditors  by  a  counterfeit  enlisting,  a  soldier 
having  by  act  of  parliament  the  privilege  of  freedom  from  arrest. 

So  where  the  words  spoken  of  a  carpenter  (s)  ;  "He  is  broken 
and  run  away,  and  will  never  return  again  ;"  after  verdict 
[  *141  ]  for  the  plaintiff,  *it  was  urged  in  arrest  of  judgment,  that 
the  words  were  not  actionable,  for  though  broken,  the 
plainthT  was  as  good  a  carpenter  as  ever ;  but  it  was  answered  by 
the  court,  that  the  credit  which  a  man  has  in  the  world  may  be  the 
means  to  support  his  skill,  for  be  may  not  have  an  opportunity  to 
show  his  workmanship  without  those  materials  wherewith  he  is 
entrusted. 

And  where  the  defendant  said  of  a  husbandman  (a),  "He  owes 
more  than  he  is  worth ;  he  is  run  away :"  the  words  were  held  to 
be  actionable,  though  it  was  objected  that  it  should  not  only  appear 
that  the  plaintiff  had  a  trade,  but  that  he  got  his  living  by  it. 

And  next;  the  words  are  actionable  when  they  throw  discredit 
upon  the  particular  commodity  in  which  the  party  deals. 

Thus,  to  say  of  a  trader  (6),  "  He  hath  nothing  but  rotten  goods 
in  his  shop,"  is  actionable :  though  it  was  said  in  the  case  referred 
to,  that  had  the  words  been  "  he  hath  rotten  goods  in  his  shop," 
they  would  not  have  supported  the  action,  and  that  the  slander  con- 
sisted in  saying  that  he  had  nothing-  but  rotten  goods  in  his  shop. 

(r)  Ld.  Raym.  1480.  Star.  762.  borough . 

(s)  3  Salk.  326.  (y)  Arm  v.  Johnson,  10  Mod,  111. 

(0  Holt.  R.  652.  (z)  Chapman  v.  Lamphire,  3  Mod.  155. 

(w)  Cro.  Car.  265.  (a)  Dobson  v.  Thorslone,  3  Mod.  112. 

(x)  10  Mod.  196,  [Harrison  v.  Thorn-         (b)Cro.  Car.  570. 


SPECIAL  CHARACTER.  141 

So,  to  tax  a  bookseller  falsely  (c)  with  having  *pab-    [  "1 1  -  ] 

lislied  an  absurd  poem,  is  actionable;  the  evident  tend- 
ency of  the  imputation  being  to  injure  him  in  his  bash 

So  where  the  defendant  said  of  the  plaintiff,  \vln»  was  an  innkeep- 
er (d),  "Deal  not  with  Southam,  for  he  is  broken,  and  there  is 
neither  entertainment  for  man  nor  horse." 

And  words  imputing  insolvency  to  an  innkeeper  arc  action 
though  at  the  time  the  words  were  spoken  lie  was  not  Bubject  to  the 
bankrupt  laws  (e). 

So  a,  false  and  malicious  account  (/)  of  the  performance  at  a 
place  of  public  amusement  will  support  an  action. 

So  where  the  defendant,  who  was  printer  of  a  newspaper,  called 
the  Oracle,  published  the  following  paragraph  concerning  the  True 
Briton  newspaper,  of  which  the  plaintiff  was  proprietor  : 

"  Times  v.  True  Briton  (g-). 

"  In  a  morning  paper  of  yesterday  was  given  the  following  char- 
acter of  the  True  Briton : — that '  It  was  the  most  vulgar,  ignorant, 
and  scurrilous  journal  ever  published  in  Great  Britain.'  To  the 
above  assertion  we  assent,  and  to  this  account  we  add, 
that  the  first  proprietors  abandoned  it,  and  *thatit  is  the  [  *143  ] 
lowest  now  in  circulation,  and  we  submit  the  fact  to  the 
consideration  of  advertisers." 

It  was  held  by  Lord  Kenyon  at  Nisi  Prius,  that  the  latter  words 
of  the  paragraph,  as  affecting  the  sale  of  the  paper  and  the  profits 
made  by  advertising,  were  actionable. 

Where  the  plaintiff  was  a  butcher  (A),  and  brought  his  action  for 
words  taxing  him  with  having  exposed  to  sale  the  flesh  of  a  cow 
which  died  in  calving,  it  was  held  after  verdict,  that  the  words  were 
not  actionable,  even  though  special  damage  was  laid  and  piw 
This  case  seems,  however,  to  be  very  loosely  reported,  and  i-  not 
supported  by  either  analogy  or  principle. 

Unless  words  affecting  the  plaintiff's  means  of  livelihood  fall  with- 
in one  of  the  foregoing  descriptions,  it  may  be  concluded  that  they 
are  not  actionable. 

(c)  Tabarl  v.  Tipper,  1  Camp.  N.  P.  (/)  Dibdifl  v.  Swan  and  Bostock,  1 
350.  .  Esp.  27. 

(d)  3  Salk.  326.  (g)  ^eriot  v-  Stewart,  1  Esp.  437. 

(e)  Whittinyion  v.  Gladwin,  5  B.  &.  C.         (M    Tasum  v.  Royers,  '1  Salk.  093. 
150. 

Vol.  I.  17 


143  CIVIL  REMEDY— ACTIONABLE  WORDS. 

The  defendant  said  of  the  plaintiff,  who  taught  girls  to  dance, 
"that  she  was  an  hermaphrodite  (i)"  and  it  was  held  that  the 
words  were  not  actionable,  and  that  it  was  no  scandal  to  her  pro- 
fession to  say  that  she  was  an  hermaphrodite,  because  men  usually 
teach  youug  women  to  dance. 

(i)  3  Salk.  397. 


C  II  A  P  T  E  R   IV. 


Where  the  words  tend   to   the    pasty's    disinherison   or  af- 
fect his  Title  to  Land. 

Words    falling   within  this  division  cither  affect  the 
probability  of  the  plaintiff's  succeeding  *to  an  estate  in    [  *142  ] 
future,  or  impeach  a  title  which  has  already  accrued. 

Instances  of  the  former  class,  where  damages  have  been  allowed 
to  be  recovered  on  account  of  the  manifest  tendency  of  the  imputa- 
tion to  defeat  the  plaintiff's  expectations,  are  exceedingly  rare,  and 
seem  to  have  been  confined  to  words  impeaching  the  legitimacy  of 
the  birth  of  an  heir  apparent. 

The  defendant  (a)  said  to  the  plaintiff,  who  was  heir  apparent  to 
his  father  and  uncle,  "  Thou  art  a  bastard."  After  verdict  for  the 
plaintiff,  the  court,  on  motion  in  arrest  of  judgment,  held  that  the 
action  was  maintainable,  since  by  reason  of  the  words 
the  plaintiff  might  be  in  disgrace  with  *his  father  and  |  *143  ] 
his  uncle,  and  they  conceiving  a  jealousy  of  him  touch- 
ing the  same,  might  possibly  disinherit  him,  and  that  though  they 
eventually  should  not,  yet  that  the  action  well  lay  for  the  damage 
which  might  come;  and 'the  cases  of  Vaughan  v.  Leigh,  and  uf 
Banister  v.  Banister  (6),  were  cited  by  Jones,  J.  as  in  point. 

In  the  first  of  these  cases  (c)  the  plaintiff  Bhowed  that  land  had 
been  given  in  tail  to  his  grandfather,  and  that  his  father  had  divers 
sons,  whereof  he  was  the  youngest,  and  his  eldest  brothers  living. 
That  a  certain  person  offered  to  buy  the  land,  and  was  willing  to 
give  him  such  a  sum  of  money  for  his  title,  and  by  reason  of  the 
words  refused  to  give  him  anything.  After  judgment  for  the 
plaintiff  in  the  Exchequer,  it  was  assigned  for  error,  that  it  appeared 
by  the  plaintiff's  own  showing  that  he  had  not  any  present  title,  and 

(a)  Humphreys  v.  Stanfield,  Cro.  Car.  (c)  Cro.  J.  215,  by  the  name  of  faughan 
469.  Jo.  388.  Godb.  451.  t.  Ellis. 

(b)  4  Cro.  17. 


143  CIVIL  REMEDY— ACTIONABLE  WORDS. 

therefore  no  cause  of  action.  But  the  two  chief  justices  conceived 
that  although  he  had  not  any  present  title,  it  appeared  that  he  had 
a  possibility  of  inheriting  the  lands,. and  that  being  offered  a  sum  of 
money  to  join  in  the  assurance,  although  he  had  not  any  present 
title,  yet  by  reason  of  the  words  he  had  a  present  dam- 
[  *144  ]  age,  and  in  future  might  receive  prejudice  *thereby  in 
case  he  were  to  claim  the  lands  by  descent. 

This  case,  though  cited  as  an  authority  for  the  former  decision, 
does  not  warrant  it  to  the  full  extent,  for  in  the  latter  a  loss  had 
actually  accrued  to  the  plaintiff  in  consequence  of  the  words ;  in 
the  former  the  supposed  prejudice  consisted  in  the  probability  that 
the  expectation  of  the  heir  apparent  would  be  defeated. 

In  the  case  of  Turner  v.  Sterling  (d),  it  was  said  by  the  court, 
"  The  law  gives  an  action  for  but  a  possibility  of  damage,  as  an 
action  lies  for  calling  an  heir  apparent  bastard." 

In  an  earlier  case  (e)  the  court  observed,  "  The  word  bastard  is 
determinable  by  the  Spiritual  Court,  but  if  the  plaintiff  add  further 
words  to  entitle  himself  as  heir,  or  show  some  possibility  of  being 
heir,  this  shall  "make  the  same  words  calling  him  bastard  to  be  ac- 
tionable. 

The'  decisions  upon  this  point  do  not,  however,  appear  to  have 
been  uniform  ;  in  the  case  of  Turner  v.  Sterling-  (/),  above  cited, 
Vaughan,  J.  said,  "  I  take  it  not  to  be  actionable  to  call  a  man  a 
bastard  whilst  his  father  is  alive,  the  books  are  cross  in 
[  *145  ]  it ;  nay,  if  lands  had  descended,  I  doubt  whether  it 
would  be  actionable  any  more  than  to  say  one  has  no 
title  to  land." 

The  last  express  decision  upon  the  point  appears  to  be  that  of 
Humphreys  v.  Stanfield  (g-),  already  referred  to,  where  it  was  de- 
cided that  words  which  alleged  that  an  heir  apparent  was  a  bastard, 
were  actionable. 

Words  impeaching  the  plaintiff's  present  title  to  lands,  have  in 
many  of  the  older  cases  been  deemed  to  be  actionable  without  proof 
of  special  damage. 

Thus,  where  a  remainder-man  Qi)  brought  an  action  against  the 
defendant  for  saying  that- the  tenant  in  tail  had  issue  one  D.  who 
was  then  alive,  it  was  held  that  the  action  was  maintainable. 

(d)  2  Vent.  2G.     Vaughan,  J.  dissent.  (g)  Cro.  Car.  469. 

(e)  2  Buls.  90.  (ft)  Bliss  v.  Stafford,  Ow.  27.  Mo.  188. 
(/ )  2  Vent.  26.     See  also  1   Roll.  Abr.     Jenk.  247. 

37,  pi.  18. 


DISINHERISON,  &c.  145 

It  appears,  however  (£),  from  a  copious  class  of  decisions,  that 
no  action  can  be  supported  for  words  affecting  the  present  title  of 
a  plaintiff  to  an  estate,  without  Bhowing  that  Bome  special  damage 
and  inconvenience  has  resulted  from  them,  as  that  he  was  prevented 
from  selling  or  making  some  advantageous  disposition  of 
it:  the  particular 'nature  of  such  specific  prejudice  will  [  146  ] 
be  hereafter  considered  ( />•)• 

Although  the  numerous  decisions  upon  the  subject  seem  to  1 
no  doubt  that  words  reflecting  upon  a  party's  present  title  must,  to 
give  a  right  of  action,  be  attended  with  special  damage,  it  does  not 
follow  as  an  immediate  and  necessary  consequence  of  this  doctrine, 
that  imputations  immediately  tending  to  defeat  the  prospects  of  an 
heir  apparent,  are  not  in  themselves  actionable,  though  it  appears 
at  first  sight  somewhat  strange  to  say  that  it  can  lie  considered  more 
prejudicial  to  impeach  a  title  resting  merely  in  expectancy,  than  to 
derogate  from  one  already  existing.  There  is,  however,  a  plain 
line  of  distinction  between  the  two  cases.  Where  Lands  have  al- 
ready descended  to  the  heir,  to  call  him  bastard,  can  work  little 
prejudice;  the  false  imputation  cannot  divest  the  estate,  though  it 
may  involve  the  owner  in  litigation,  for  which  special  damage  he  is 
entitled  to  his  remedy  ;  but  reflections  of  this  nature,  when  ca>t  upon 
an  heir  apparent,  may  produce  consequences  infinitely  more  Berious, 
for  they  may  induce  the  ancestor  to  disinherit  the  progeny  which  he 
conceives  to  be  spurious. 

In  the  former  case  the  evil  resulting  from  the  'slander  [  '117 
can  be  but  slight  and  temporary ;  in  the  latter  it  may 
prove  utterly  irremediable.  The  cases  relating  to  words  of  the  lat- 
ter description  are  of  considerable  antiquity  and  of  rare  occurrence, 
and  though  they  certainly  carry  the  doctrine  of  presumptive  and 
anticipative  loss  to  a  great  extent,  yet  they  seem  to  be  supported 
and  warranted  by  the  application  of  sound  and  general  principles 
to  the  peculiar  exigency  of  the  case. 

(i)  Cro.  Eli*.  198.  8  Keb.  158.     1  Vin.  Ab.  658.  Sty.  119.76.    IV;  8ned*v. 

Badley,  3  Bute.  74.  (fc)  See  title  Special  Damage. 


17' 


CHAPTER  V. 


Where  the  Slander  is   propagated  by  Printing,  Writing,  or 

Signs. 

Besides  the  communications  which  have  been  enumerated  under 
the  preceding  divisions,  many  have  been  deemed  to  be 
intrinsically  actionable,  although  unattended  *with  special    [  *148  ] 
damage,  on  account  of  the  mode  in  which  they  have  been 
effected. 

Observations  upon  this  class  of  cases,  relate,  either  to  the  reasons 
and  authorities  for  this  distinction,  or  to  the  extent  to  which  it  has 
been  carried. 

First,  as  to  the  reasons  and  authorities  upon  which  the  distinction 
is  founded. 

It  has  been  said  (a)  that  "  slander  in  writing  has  at  all  times, 
and  with  good  reason,  been  punished  in  a  more  exemplary  manner 
than  slanderous  words,  for  as  it  has  a  greater  tendency  to  provoke 
men  to  breaches  of  the  peace,  quarrels,  and  murders,  it  is  of  much 
more  dangerous  consequence  to  society.  Words,  which  are  fre- 
quently the  effect  of  a  sudden  gust  of  passion,  may 
*soon  be  buried  in  oblivion ;  but  slander  which  is  com-  [  *149  ] 
mitted  to  writing,  besides  that  the  author  is  actuated  by 
more  deliberate  malice,  is  for  the  most  part  so  lasting  as  to  be 
scarcely  ever  forgiven." 

And,  that  "  (6)  written  slander  hereby  receives  an  aggravation, 
in  that  it  is  presumed  to  have  been  entered  upon  with  coolness  and 
deliberation,  and  to  continue  longer  and  propagate  wider  and  farther 
than  any  other  scandal." 

These  reasons  embrace  three  distinct  points : 

1.  The  greater  degree  of  danger  to  the  public  peace. 

2.  The  greater  degree  of  malice  in  the  author  of  the  scandal. 

(a)  6  Baa  Ab.  202,  tit.  Slander. 

(6)  4  Bac.  Ab.  449.  5  Co.  125.  Ld.  Ray.  416.  12  Mod.  219. 


LIBEL.  149 

3.  The  increased  detriment  to  the  object  of  the  slander  from  its 
more  extended  circulation  and  duration. 

In  the  firs!  place,  although  the  apprehension  of  danger  to  the 
public  peace  may  furnish  a  sufficient  ground  for  subjecting  the 
publisher  of  a  libel  to  penal  visitation,  that  is  a  consideration  which 
cannot  at  all  affect  the  right  to  a  civil  remedy  by  action. 

In  the  next  place,  it  is  clear  that  written  slander  may  evince   a 
higher  degree  of   deliberation,  and  therefore  of  malice,  than  that 
which  is   merely   oral;     it  may,  however,  be  doubted 
whether    that  'superior  degree  of   malice  constitutes  a    [  15Q  ] 
sound  and  well  principled  distinction  between  oral  and 
written  slander. 

As  far  as  regards  the  intention  of  the  publisher,  it  seems  to  be 
certain,  that  malice,  in  law,  is  sufficient  to  support  the  action  ;  that 
is,  a  party  is  liable  if  he  voluntarily  publish  that  which  is  injurious 
to  another,  and  occasions  damage  to  him  without  legal  excuse  (c). 
Whether,  then,  the  calumniator  speak  or  write  that  which  is  injuri- 
ous to  another,  malice  in  law  equally  exists,  and  the  mere  degree  of 
malice,  however  it  may  affect  the  question  of  damages,  does  not,  in 
principle,  constitute  a  distinct  limit  between  that  which  is  actionable 
and  that  which  is  not  so. 

Is  then  the  reason  for  making  written  defamation  actionable  with- 
out special  damage,  where  an  oral  communication   would  not  have 
been  so,  the  increased  detriment  which  may  probably  arise  to  the 
party,  in  consequence  of  the  means  of  publication  which  have 
resorted  to  ? 

Such  a  consideration  obviously  applies  rather  to  the  quantum  of 
injury  sustained  than  to  the  actual  existence  of  damage  ;  and  if  any 
legal  damage  can,  in  any  case,  be  presumed  to  have  arisen  from  the 
publication  of  written  slander,  must  not  a  similar  presumption  obtain. 
though  (it  may  be)  to  an  inferior  extent,  when  the  very 
*same  matter  is  published  orally?  How  do  the  cases  [  'l'l  ) 
differ  but  in  degree?  The  extent  of  mischief  merely 
affects  the  quantum  of  damages,  and  not  the  right  of  actios.  If 
damage  to  an  amount  which  can  be  estimated  by  a  jury  has  been 
sustained,  by  publishing  the  scandal  to  a  hundred  persons,  may  not 
the  damage  be  also  estimated  where  the  publication  has  been  limited 
to  ten?  Whether  a  greater  degree  of  damage  will  accrue  from 
written  than  from  oral  slander,  must  be  casual  and  uncertain  ;  words 

(c)  Vide  Preliminary  Discourse,  infra,  tit.  Intention,  and  supra,  p.  9. 


151  CIVIL  REMEDY: 

spoken  to  a  multitude,  may  be  more  likely  to  injure  their  object, 
than  if  they  had  been  communicated  by  writing  to  one  or  a  few  in- 
dividuals. 

It  is,  however,  to  be  recollected,  that  the  very  presumption  itself, 
the  limitation  of  which  gives  rise  to  this  difficulty  and  apparent  in- 
consistency, is  purely  artificial  and  arbitrary,  and  consequently  its 
limits  are  naturally  of  the  same  description. 

From  the  exigency  of  the  case,  damage  is  presumed  without  proof, 
that  is,  the  communication  is  deemed  to  be  a  substantive  ground  of 
action  not  in  all  cases,  for  so  wide  a  presumption  would  too  much  en- 
courage a  spirit  of  vexatious  litigation,  but  in  cases  where  the  neces- 
sity for  making  such  presumption  is  urgent  and  apparent. 

The  principle,  then,  being  once  admitted,  that  damage  may,  in 
cases  of  exigency,  be  presumed,  and  an  opposite  princi- 

*152  ]  pie  of  public  policy  requiring  *that  such  a  presumption 
ought  not  to  obtain  generally,  but  should  be  limited  and 
restrained,  it  is  evidently  a  mixed  question  of  expediency,  arising 
from  the  particular  nature  of  any  class  of  cases  on  the  one  hand, 
and  of  public  policy  on  the  other,  what  limitation  shall  be  applied  to 
them.  And  consequently,  although  if  the  question  had  depended 
wholly  upon  intrinsic  reasons,  such  a  distinction  between  oral  and 
written  slander  might  have  been  deemed  incongruous  ;  it  cannot  be 
so  regarded,  when  it  is  considered  that  it  depends  partly  on  consid- 
erations of  extrinsic  policy,  and  it  may  obviously  consist  well  with 
sound  legal  policy,  to  extend  the  remedy  where  the  defamation  is  in 
writing,  and  therefore  capable  of  an  extensive,  permanent,  and  mis- 
chievous diffusion,  beyond,  those  limits  which  are  assigned  in  case 
of  mere  oral  communications. 

Whether  such  a  distinction  can  be  supported  on  any  just  grounds 
of  reason  or  convenience  has  been  the  subject  of  much  controversy  ; 
in  the  last  case  in  which  the  subject  was  judicially  considered,  the 
court  intimated  that  they  supported  the  rule  on  the  ground  of  pre- 
cedent only  (s). 

The  number  of  actual  decisions  founded  upon  the  difference  be- 
tween oral  and  written  slander  is  exceedingly  small ;  but 
[  *153  ]  the  distinction  itself  has  *been  very  frequently  collateral- 
ly countenanced  and  recognized  by  most  able  and  accom- 
plished judges,  and  is  now  fully  established. 

(s)   Thor ley  v.  Lord  Kerry,  4  Taunt.  355,  infra,  162. 


LIBEL.  153 

It  appears  to  have  been  held  in  curly  times,  that  a  libel  (c)  on  the 
character  of  a  private  individual  was  punishable  by  way  of  indict- 
ment. 

Sir  Edward  Coke,  in  his  third  Institute  ((/),  cites  a  record  of  the 
conviction  of  Adam  dfi  Haven-worth,  who  was  indicted  in  the  King's 
Bench,  in  the  reign  of  Edward  ill.  for  the  making  of  a  lilted  in  the 
French  tongue  against  Richard  of  Snowshall,  calling  him  therein  Roy 
dc  Haveners,  &c.  and  adds,  "so  a  libeller,  or  publisher  of  libel, 
committcth  a  public  offence,  and  may  be  indicted  thereof  at  Com- 
mon Law." 

This,  indeed,  was  a  criminal  proceeding,  and  no  instance  of  a  civil 
action  in  case  of  libel  appears  till  long  after  ;  it  seems,  however,  to 
have  been  frequently  held  («),  that  where  a  party  is  indictable  for 
any  written  defamation,  an  action  is  also  maintainable  at  the  suit  of 
the  party  injured. 

*In  the  case  of  Dr.  Edwards  v.  Dr.  Wooton  (/)  in  [  *1."  I  ] 
the  Star  Chamber,  it  appeared  that  Dr.  Wooton  had  writ- 
ten to  Dr.  Edwards  a  letter,  containing  scandalous  matter,  to  which 
he  had  subscribed  his  name,  and  that  he  had  likewise  published  and 
dispersed  a  number  of  copies  of  the  same  letter.  And  it  was  re- 
solved, by  the  Lord  Chancellor  Egerton,  the  two  Chief  Justices, 
and  the  whole  court,  that  this  was  a  subtle  and  dangerous  kind  of 
libel,  inasmuch  as  the  writing  a  private  letter,  to  another,  without 
other  publication,  would  not  support  an  action  on  the  case,  but  that 
when  published  to  others,  to  the  scandal  of  the  plaintiff)  as  it  had 
oftentimes  been  adjudged,  an  action  lieth.  And  it  was  said,  that 
although  the  defendant  had  subscribed  his  name  to  the  letter,  yet 
since  it  contained  scandalous  matter,  it  was  to  be  considered  in  Law 
as  amounting  to  a  libel.  From  this  case,  though  the  contents  of  the 
letter  in  question  do  not  appear,  the  opinion  of  the  Lord  Chancellor 
and  the  two  Chief  Justices  may  lie  collected,  thai  generally,  Bcanda- 

lous  matter  published  in  writing  was  a  ground  of  anion. 

Peacock  (§■)  exhibited  his  l»ill  against  Sir  George  Kaynal  in  the 
Star  Chamber,  for  a  bill  written  under  these  circumstan 

(c)  It  is  to  be  recollected  that  the  term    der,  202.  8  BL  Coma.   126.5   Camp.  C 
Libel, in  the  followiug  pages,  is  used  to    all.    It  has, however,  been  said,  that  in 

signify   any    writings,    pictures,   or    other  some  instances    a    libel  may  be  indiol 

signs,  tending  to  injure  the  character  of  an  although  it  be  Dot  actionable.    3  .Mod.  139. 

individual,  or  to  produce  public  disorder.  Com.  Dig.  Libel,  A.  l'. 

(,/)  74.  (/)   12  Rep.  35. 

(e)  Skin.   123.    2   Wils.   201.    4    Com.         lir)  2  Browul.  151. 
Dig.  tit.  Libel.  C.  3.    G  Bac.  Ab.  tit.  Slaa- 


154  CIVIL  REMEDY  : 

The  plaintiff  was  heir  general  to  Richard  Peacock,  who  was  of 

the  age  of  86  years,  and  had  lands  of  inheritance  to  the 
[  *155  ]    Value  of  £800  a  year  ;  the  defendant,  who  had  married 

the  daughter  of  Sir  Edward  Peacock,  who  was  a  younger 
brother  of  Richard  Peacock,  wrote  a  letter  to  Richard  Peacock, 
informing  him  that  the  plaintiff  was  not  the  son  of  a  Peacock,  and 
was  a  hunter  of  taverns,  and  that  divers  women  had  followed  him 
from  London  to  the  place  of  his  dwelling,  that  he  had  a  desire  to 
hear  of  the  death  of  the  said  Richard,  and  that  all  the  inheritance 
would  not  be  sufficient  to  satisfy  his  debts,  and  many  other  matters 
concerning  his  reputation  and  credit.  And  it  was  agreed  that  this 
was  a  libel,  and  for  that  the  defendant  was  fined  to  .£200,  and  im- 
prisonment, according  to  the  course  of  the  court ;  and  the  plaintiff 
let  loose  to  the  Common  Law  for  his  recompense  for  the  damages 
which  he  had  sustained. 

In  the  case  of  King-  v.  Sir  Edward  Lake  (A),  the  libel  was  con- 
tained in  an  answer  to  a  petition  preferred  by  the  plaintiff  to  the 
House  of  Commons,  and  consisted  of  many  general  reflections  upon 

the-  conduct  ot  the  plaintiff.  After  verdict  for  the  plain- 
[  *156  ]    tiff,  *it  was  moved  in  arrest  of  judgment,  that  the  terms 

of  the  publication  were  too  general  to  support  an  action  ; 
but  it  was  said  by  Hale,  Chief  Baron,  that  "  Although  such  general 
words  spoken  once,  without  writing-  or  publishing  them,  would  not 
be  actionable,  yet  here  they  being  written  and  published,  which 
contains  more  malice  than  if  they  had  been  once  spoken,  they  are 
actionable." 

In  the  case  of  Sir  J.  Austen  v.  Col.  Culpepper  (£),  the  defend- 
ant had  forged  an  order  of  the  Court  of  Chancery,  containing  many 
defamatory  reflections  upon  the  plaintiff,  and  at  the  bottom  had 
drawn  the  form  of  a  pillory,  and  subscribed  to  it  the  words,  "  For 
Sir  J.  Austen  and  his  witnesses  by  him  suborned." 

It  was  contended  that  the  action  was  not  maintainable,  since  no 
certain  slander  was  imputed  by  the  words,  and  if  the  words  would 
not  support  the  action,  the  representation  could  not,  since  it  was  not 
to  be  inferred  that  the  parties  were  perjured,  and  that  though  for 
setting  up  horns,  <fcc.  for  the  purpose  of  ridicule,  an  indictment  lay, 

(/i)  Hardr.  470.     See  also  Sir  Baptist  affecting  a  man  in  his  trade  were  action- 

Hick's  case,  Hob.   215.     King  of  Gray's  able,  it  would  be  much  stronger  in  the  case 

Inn  v.  Sir  E.  Lake,  2  Vent.  28.  Harman  of  a  libel  in  a  public   newspaper,  which  is 

v.  Dlaney,  Str.  888.     The  court,  in  the  more  diffusive, 
latter  case,  observed,  that  if  bare  words         (i)  Skinner,  123.     2  Show.  314. 


LIBEL.  156 

yet  that  no  action  was  maintainable  ;  but  the  court  held  that  an  ac- 
tion in  such  cases  was  maintainable,  as  well  as  an  indictment)  and 
referred  to  the  case  of  Col.  King  v.  Lake  (k),  w: 
the  plaintiff  had  judgment  in  the  Exchequer.     And  the        *lo~  ] 
court  added,  that  to  say  of  any  one   that  he  is  a   dis- 
honest man,  would  not  be  actionable;  but  that  to  publish  it  or  put 
it  on  the  posts  would  lie  actionable,  and  the  plaintiff  had  judgment. 
In  the  case  of  Cropp  v.  Ti/ney  (/),  it  was  said  by   Holt,  ('.  J., 
"  Scandalous  matter  is  not  necessary  to  make  a  libel,  it  is  enough  if 
the  defendant  induce  an  ill  opinion  to  be  had  of  the  plaintiffs  or 
make  him  contemptible  and  ridiculous;  as  for  instance,  an  action 
was  brought  by  the  husband  for  riding  Skimmington  (m)  and  ad- 
judged that  it  lay,  because  it  made  him  ridiculous  and  exposed  him." 

In  Bradley  v.  Methwyn  («),  which  was  an  action  on  the  case  for 
a  libel,  Lord  Hardwicke,  C.  J.  observed,  that  "  The  present  case  is 
not  for  words,  but  for  a  libel,  in  which  the  rule  is  different,  for  s< 
words  may  be  actionable  or  prosecuted  by  way  of  indictment,  which 
would  not  be  so  if  spoken  only,  for  the  crime  in  a  libel  does  not  arise 
merely  from  the  scandal,  but  from  the  tendency  which 
it  has  to  occasion  a  breach  of  *the  peace,  by  making  the    [  158  ] 
scandal  more  public  and  lasting  and  spreading  it  abroad, 
which  was  determined  in  this  court  in  the  case  of  King  v.  Griffin. 
Hil.  7.  G.  II." 

In  VillersY.  Monsley  (o),  the  libel  charged  the  plaintiff  with 
having  the  itch:  upon  motion  in  arrest  of  judgment,  Wilmot,  C.  J. 
observed,  "  If  any  man  deliberately,  or  maliciously,  publish  any 
thing  in  writing  concerning  another  which  renders  him  ridiculous,  or 
tends  to  hinder  mankind  from  associating-  or  having  intercourse 
with  him,  an  action  well  lies  against  such  publisher." 

Bathurst,  J.  tt  I  wish  this  matter  was  thoroughly  gone  into  and 
more  solemnly  determined;  however,  I  have  no  doubt  at  present, 
but  that  the  writing  or  publishing  anything  which  renders  a  man 
ridiculous  is  actionable.  I  repeat  it,  I  wish  there  were  some  more 
solemn  determination  that  the  writing  and  publishing  any  thing 
which  tends  to  make  a  man  ridiculous  or  infamous    ought  to  be 

punished." 

Gould,  J.  "  What  my  brother  Bathurst  has  Bald  is  very  material ; 

(*c)  Hardr.  470.  (")  Selwyn's  Ni.  Pri.  1st  ed.  925.  n.  2. 

(/)  8Salk.226.  B.  R,  M.  10  G  2.  MSS. 

(m)  Mason  v.   Jennings,  Sir   T.  Ray.         (o)  2  Wils.  403. 
401,  contra.  Sed  vid.  1  Show.  314. 


158  CIVIL  REMEDY: 

there  is  a  distinction  between  libels  and  words :  a  libel  is  punishable 
both  criminally  and  by  action,  when  speaking  the  words  would  not 
be  punishable  either  way,  for  speaking  the  words  rogue  and  rascal 
of  any  one,  an  action  will  not  lie,  but  if  those  words 
[  *159  ]  *were  written  and  published  of  any  one,  I  doubt  not  an 
action  will  lie.  I  think  the  publishing  any  thing  of  a  man 
that  renders  him  ridiculous,  is  a  libel  and  actionable."  And  judg- 
ment was  given  for  the  plaintiff  by  the  whole  court,  without  grant- 
ing any  rule  to  show  cause. 

In  J'  Anson  v.  Stuart  (/?)  the  action  .was  brought  in  the  Common 
Pleas,  for  publishing  in  the  Morning  Post,  that  "  The  plaintiff  was 
at  the  head  of  a  gang  of  swindlers,  a  common  informer,  and  had 
been  guilty  of  deceiving  and  defrauding  divers  persons  with  whom  he 
had  dealings  and  transactions."  The  plaintiff  demurred  specially 
on  account  of  the  generality  of  the  defendant's  plea,  and  judgment 
having  been  given  for  the  defendant  below,  the  plaintiff  carried  the 
matter,  by  writ  of  error,  into  the  Court  of  King's  Bench,  where  the 
same  causes  were  assigned  for  error,  which  before  had  been  alleged 
as  grounds  of  special  demurrer. 

The  defendant  further  contended,  that  the  declaration  was  insuffi- 
cient, as  the  words  "  common  informer "  were  not  actionable, 
and  the  term  "  Swindler"  was  not  a  legal  term  of  which  the  law 
could  take  notice.  But  Buller,  J.  observed,  "  The  objection  after- 
wards taken  to  the  declaration  is,  that  the  term  '  swind- 
le *160  ]  ler'  *is  too  general,  and  cannot  be  legally  understood, 
but  Mr.  J.  Aston  formerly  held  otherwise,  for  he  said 
that  the  term  swindling  was  in  general  use,  and  that  the  court  could 
not  say  they  were  ignorant  of  it.  But  at  all  events  we  cannot  say 
upon  this  record,  that  we  do  not  understand  the  import  of  it,  for  it 
is  explained  to  be  '  defrauding  divers  persons.'  The  declaration  con- 
tains as  libellous  a  charge  as  can  well  be  imagined." 

This  case  cannot  it  seems  be  considered  as  decided  upon  the  dis- 
tinction in  question,  since  it  seems  to  have  been  the  opinion  of  Mr. 
J.  Buller,  that  the  term  "  swindler,"  as  explained  by  the  subsequent 
words,  was  actionable  without  reference  to  the  mode  of  publica- 
tion (#). 

Zenobio  brought  an  action  against  Axtell  (r)  for  publishing  in  the 
newspaper,  called  the  Courier  de  Londres,  the  following  paragraph, 

(;;)   1  T.  R.  748. 

{q)  In  Saville  v.  Jardine,  2  H.  Bl.  531,  it  was  held  that  the  term  "swindler  "  was 
not  actionable, 
(r)  5  T.  R.  162. 


LIBEL.  160 

"  The  late  famous  Bishop  of  Autiui,  to  the  great  satisfaction  of  all 
honest  men,  has  just  received  an  order  to  quit  England:  the  same 
compliment  has  been  paid  to  an  adventurer,  a  great  gambler,  who 
calls  himself  the  Count  Zenobio."  After  verdict  for  the  plaintiff, 
the  defendant  contended,  in  arrest  of  judgment,  thai  the 
publication  was  not  libellous;  *but  as  there  was  another  '161  J 
objection,  which  was  fatal  to  the  declaration,  the  court 
did  not  give  any  opinion  as  to  the  actionable  quality  of  the  words. 

In  Bell  v.  Stone  (s)  the  defendant  wrote  the  following  letter  con- 
cerning the  plaintiff,  who  was  a  land  surveyor,  to  one  X.  lb  to  whom 
the  plaintiff  owed  a  large  sum  of  money  : 

"  After  the  communication  I  had  with  your  son  in  your  absence, 
1  but  little  thought  yon  would  have  been  made  the  dupe  of  one  of 
the  most  infernal  villains  that  ever  disgraced  human  nature;  hut  I 
suppose  you  were  deceived  by  those  whom  you  thought  well  of.  and 
whom  he  will  deceive  if  they  will  give  him  an  opportunity  ;  I  am 
told  they  are  respectable,  and  how  they  can  be  connected  with  him 
is  the  most  astonishing  thing  to  me.  Mr.  H.  writes  me  you  called 
upon  him,  (meaning  the  plaintiff,)  on  the  subject  of  your  account, 
for  which  the  villain  gave  you  his  note  at  five  months."  Special 
damage  was  laid  in  the  declaration,  but  none  being  proved  at  the 
trial,  the  learned  Judge  who  tried  the  cause  was  of  opinion  that  the 
letter,  unsupported  by  special  damage,  was  not  actionable,  and 
directed  a  verdict  for  the  defendant.  The  counsel  for  the 
plaintiff,  however,  contending  *that  the  letter  itself  was  [  *162  ] 
actionable,  it  was  left  to  the  jury  to  say  what  damages 
they  would  give,  supposing  the  plaintiff  entitled  to  recover,  and  they 
answered,  one  shilling.  A  rule  was  obtained  to  show  cause  why  the 
verdict  for  the  defendant  should  not  be  set  aside,  and  a  verdict  en- 
tered for  the  plaintiff,  on  the  count  containing  the  letter,  for  one 
shilling,  on  the  ground  that  though  the  words  in  that  count  might 
not  be  actionable  if  only  spoken,  yet  that  being  committed  to  writing 
they  were  so. 

Le  Blanc,  Serjt.  was  to  have  Bhown  cause  against  the  rule,  but 
the  court  expressing  themselves  clearly  of  opinion,  that  any  words 
written  and  published,  throwing  contumely  on  thr  party,  were  ac- 
tionable, the  learned  counsel  declined  arguing  the  point,  and  the 
rule  wras  made  absolute  [a  a]. 

(s)  1  Bos.  &  Pul.  331.  bald,    that   to  publish,  in   writing,  of  an 

[a  a]  In  the  case  of  the  Archbishop  of    archbishop,  that  he  had  attempted  to  con- 

Tuum   v.   Robeson,  5  Biugh.    17,it  was    vert  a  Catholic  priest  to  become  a  Protest- 

Vol.  I.  18 


1G2  CIVIL  REMEDY: 

Whatever  of  doubt  might,  notwithstanding  the  previous  authori- 
ties, seem  still  to  have  attached  to  this  question,  has  been  removed 
by  the  decision  in  the  Exchequer  Chamber,  in  the  case  of  Thorley  v. 
Lord  Kerry  (£).     Lord  Kerry,  (the  plaintiff  below  and  defendant 
in  error,)  founded  his  action  upon  a  libel,  charging  him  with  being  a 
hypocrite,  and  with  having  used  the  cloak  of  religion  for  unworthy 
purposes.     He  obtained  a  verdict  with  £20  damages,  and  had  judg- 
ment in  the  King's  Bench  without  argument.     A  writ  of 
[  *163  ]  *error  was  brought  in  the  Exchequer  Chamber,  and  after 
very  able  arguments,  in  which  all  the  previous  authorities 
were  considered,  judgment  was  finally  given  for  the  defendant  in 
error.     Sir  J.  Mansfield,  C.  J.  in  delivering  the  opinion  of  the  court? 
stated  that  the  words,  had  they  merely  been  spoken,  would  not  have 
been  actionable,  and  after  expressly  repudiating  any  distinction  in 
principle  between  oral  and  written  scandal,  intimated  that  the  judg- 
ment of  the  court  in  favor  of  the  defendant  in  error,  was  founded 
entirely  on  the  previous  authorities,  which  established  a  rule  too  in- 
veterate to  be  overturned  (w)  [1] . 

ant  clergyman,  by  offers   of  money  and  overseer,   of   oppressive   conduct  towards 
preferment  was  actionable.     And  Best,  C.  paupers,    in    compelling   them   to   receive 
J.  after  observiug,  that  in  Lord  Kerry  v.  payment  of  their  weekly  parish  allowance 
Thorley,  the  distinction  between  oral  and  in  orders  for  flour  on  a  particular  trades- 
written  slander  had  been   established  too  man  was  actionable,  though  the  writer  was 
firmly  to  be  shaken,  observed,  "  according  mistaken,  in  supposing  that  the  misconduct 
♦o  that  case,  in  order  to   support  such  an  complained   of  was   an   offence  within  the 
action  for  oral  slander,  something  criminal  stat.  55  Geo.  3,  c.  139,  s.  6. 
must  have  been  imputed;  but  in  a  libel,  In  Clement  v.  Chivis,  in  error,  9  B.  and 
any  tendency  to  bring  a  party  into  contempt  C.  172,  it  was  held  that   it  was  held  libel- 
and  ridicule  is  actionable,  and   in    general  lous   and  actionable  to  publish  of  a  coach- 
any  charge  of  immoral   conduct,  although  man  that  he  had  been  guilty  of  gross   rais- 
in matters  not  punishable  at  law."  conduct,  and  had  insulted  two  females  and 
In  the  case  of  Woodward  v.  Dowsing,  2  one  gentleman  who  were  outside,  in  a  bare- 
M.  &  R.  74,  Lord  Tentcrden   said,  "  This  faced  manner, 
is  a  case  of  written  slander,  in  which  shape  (Q  4  Taunton,  355. 
whatever  tends  to  bring  a  party  into  public  («)  His  lordship,  in   giving  judgment, 
hatred  and   disgrace,  is  actionable.     Can  observed,—"  There   is  no   doubt  that  this 
any   man  read   this  libel   without  saying  was  a  libel  for  which  the  plaintiff  in  error 
that  it  charges  the  plaintiff  with  oppressive     might  have  been  indicted   and  punished, 
conduct  ?     And  therefore  it  was  held,  in    because,  though  the  words  impute  no  pun- 
that  case,  that  a  written  charge  against  an     ishable  crimes,  they  contain   that  sort  of 


[1]  It  is  worthy  of  remark,  that  at  a  period  as  late  as  1812,  when  the  case  of  Thorn- 
ley  v.  Lord  Kerry  was  decided,  that  the  distinction  as  to  the  right  of  action  between 
words  written  and  words  spoken  should  still  have  been  the  subject  of  discussion  by  coun- 
sel, and  of  solemn  adjudication  by  the  court.  In  the  first  action  for  a  libel  found  in  the 
books  of  reports  of  the  State  of  New-York,  viz:  that  of  Riggs  y.  Denniston,  3  Johns. 


LIBEL. 


163 


It  is  probable  that  in  early  times  there  was  no  differ- 
ence, as  far  as  concerned  civil  actions,  between  "verbal     [  *1G4  ] 


imputation  which  is  calculated  to  vilify  a 
man,  and  bring  him,  as  the  books  say, 
into  hatred,  contempt,  and  ridicule;  for 
all  words  of  that  description  an  indictment 
lies:  and  I  should  have  thought  that  the 
peace  and  good  name  of  individuals  were 
sufficiently  guards  1  by  the  terrors  of  this 
criminal  proceeding  in  such  cases.  The 
words,  if  merely  spoken,  would  not  be  of 
themselves  sufficient  to  support  an  action ; 
but  the  question  now  is,  whether  an  action 
will  lie  for  these  words  so  written,  not- 
withstanding that  such  an  action  will  not 
lie  for  them  if  spoken;  and  I  am  very 
sorry  it  was  not  discussed  in  the  Court  of 
King's  Bench,  that  we  might  have  had  the 
opinion  of  all  the  twelve  judges  on  the 
point,  whether  there  be  any  distinction  as 
to  the  right  of  action  between  written  and 
parol  scandal.  For  myself,  after  having 
heard  it  extremely  well  argued,  and  especi- 
ally in  this  case  by  Mr.  Barnewall,  I  can- 
not upon  principle,  make  any  difference 
between  words  written  and  words  spoken, 
as  to  the  right  which  arises  on  them  of 
bringing  an  action.  For  the  plaintiff  in 
error,  it  has  been  truly  urged  that,  in  the 
old  books  and  abridgments,  no  distinction 
is  taken  between  words  written  and  spoken- 
But  the  distinction  has  been  made  between 
written  and  spoken  slander  as  far -back  as 
Charles  the  Second's  time,  and  the  differ- 
ence has  been  recognized  by  the  courts 
for  at  least  a  century  back.  It  does  not 
appear  to  me  that  the  rights  of  parties  to 
a  good  character  are  insufficiently  defended 


by  the  criminal  remedies  which   the   law 
and    the    Inw    gives  a    very  ample 
field    for    retribution  by    action,  for  words 
spoken  in  thi  '  damage, — 

of  words  spoken  of  a  man  in  his  trade 
or  profession, — of  a  man  in  office, — of  a 
magistrate  or  officer;  rot  all  these  an  action 
lies.  But  for  more  general  abnse  spoken, 
no  action  lies.  In  all  the  arguments,  both 
of  the  judges  and  counsel,  in  almost  all 
the  cases  in  which  the  question  has  been 
whether  what  is  contained  in  a  writing  be 
the  subject  of  an -action  or  not,  it  lias  been 
considered  whether  the  words  if  spoken 
would  maintain  an  action.  It  is  curious 
that  they  have  also  adverted  to  the  ques- 
tion, whether  it  tends  to  produce  a  breach 
of  the  peace,  but  that  is  wholly  irrelevant, 
and  is  no  ground  for  recovering  damages. 
So  it  has  been  argued,  that  writing  shows 
more  deliberate  malignity;  but  the  samo 
answer  suffices  that  the  action  is  not 
maintainable  upon  the  ground  of  the  ma- 
lignity, but  for  the  damage  Bnstained.  Bo 
it  is  argued,  that  written  scandal  is  more 
generally  diffused  than  words  spoken,  and 
is  therefore  actionable;  but  an  assertion 
made  in  a  public  place,  as  upon  the  Royal 
Exchange  concerning  a  merchant  in  Lon- 
don, may  be  much  more  extensively  dif- 
fused than  a  few  printed  papers  dispersed 
or  a  private  letter;  it  is  true  that 
paper  may  be  v  y  read,  but 

that  is  all  oasnaL  Theee  are  the  argu- 
ments which  prevail  on  my  mind  to  repu- 
diate the   distinction    between  written  and 


Cas.  198,  decided  in  1802.    Chancellor  Kbit,  then  one  of  the  judges  Bupreme 

Court,  in  pronouncing  the  judgment  of  the  court,  observe!  that  the  0  dnsl  the 

plaintiff  were  clearly  libellous,  because  they  threw  contumely  and  odium  upon  him  in  his 
character  as  a  commissioner  of  bankrupt. -y;  instead  of  holding  them  actionable  as  sub- 
jecting the  plaintiff  to  the  loss  of  his  office.  Such  has  been  the  doctrine  of  that 
court  ever  since.  In  Van  jXess  v.  BkmiUon,  L9  Johns.  K.  867,  Chief  Justice  BnsoH 
remarked,  "  It  may,  however,  be  observed  in  the  outset,  that  there  exists  a  decided  dis- 
tinction between  words  spoken  and  written  slander.  To  maintaiu  an  action  for  a  libel, 
it  is  not  necessary  that  an  indictable  offence  should  be  imputed  to  the  plaintiff.  If  a 
libel  hold3  a  party  up  to  public  scorn,  contempt,  and  ridicule,  it  is  actionable." 


164 


CIVIL  REMEDY 


and  written  slander ;  no  distinction  is  made  between  them 
[  *165  ]    *neither  in  the  statutes  of  Scandalum  Magnatum  or  in  the 

older  cases  relating  to  the  subject. 
[  *166  ]       The  general  rule  was  probably  imported  from  *the  civil 

law.  Bracton  lays  down  the  law  nearly  in  the  language 
of  the  Institutes :  actio  injuriarum  competit  ei  qui  contumeliam  vel 
injuriani  passus  est  (a.-).  It  may  be  inferred,  from  the  stat.  of  Cir- 
cumspecte  agatis,  that  in  the  reign  of  Ed.  I.  actions  for  damages,  in 
the  case  of  defamation,  were  common  in  the  temporal  courts  (3/). 
Whatever  may  have  been  the  ancient  rules  of  law  (V),  with  regard 
to  slander,  they  were  afterwards  relaxed  (a)  or  contracted,  as  the 
courts  deemed  it  convenient,  until  as  far  as  regards  oral  slander, 
they  were  moulded  into  their  present  form. 

There  was,  however,  little  necessity  for  visiting  written  or  print- 
ed, as  contradistinguished  from  oral  slander,  with  either  civil  or 
penal  censures,  until  the  art  of  printing  was  invented,  and  learn- 
ing had  become  more  general.  The  offence  of  libel  fell  principally 
under  the  jurisdiction  of  the  Star  Chamber,  which,  in  part  at  least 
adopted   the  rules  of  the  civil  law,  and  which,  when  that  juris- 


spoken' scandal,  but  that  distinction  has 
been  established  by  some  of  the  greatest 
names  known  to  the  law,  Lord  Hardwicke; 
Hale,  I  believe,  Holt,  C.  J.,  and  others- 
Lord  Hardwicke,  C.  J.,  especially  has  laid 
H  down,  that  an  action  for  a  libel  may  be 
brought  on  words  written,  when  the  words 
if  spoken  would  not  sustain  it.  Comyns 
Dig.  tit.  Libel,  referring  to  the  case  in 
Fitz.  122,  253,  says,  there  is  a  distinction 
between  written  and  spoken  scandal,  by 
his  putting  it  down  there,  as  he  does,  as 
being  the  law;  without  making  any  query 
or  doubt  upon  it,  we  are  led  to  suppose 
that  he  was  of  the  same  opinion.  I  do  not 
now  recapitulate  the  cases,  but  we  cannot, 


dency  of  the  libel  to  provoke  a  breach  of 
the  peace,  or  the  degree  of  malignity  which 
actuates  the  writer,  has  nothing  to  do  with 
the  question.  If  the  matter  were  for  the 
first  time  to  be  decided  at  this  day,  I  should 
have  no  hesitation  in  saying,  that  no  ac- 
tion could  be  maintained  for  written  scan- 
dal which  could  not  be  maintained  for  the 
words  if  they  had  been  spoken."  See  also 
the  opinion  of  the  judges  in  the  case  of 
Maegregor  v.  Thwaites,  3  B.  and  C.  24. 

(x)  Bracton  de  Actionibus,  f.  104.  Again 
he  says,  Facta  puniuntar  ut  furta,  homi- 
cidia;  scripta,  ut  falsa  et  libelli  famosi.  lb. 
f.  105. 

(y)  Et  in  causa  diffamationis  coneessum 


in  opposition  to  them,  venture  to  lay  down     fuit  alias,  quod  placita  ilia  teneantur  in 


at  this  day  that  no  action  can  be  maintained 
for  any  words  written,  for  which  an  action 
could  not  be  maintained  if  they  were 
spoken;  upon  these  grounds,  we  think  the 
judgment  of  the  Court  of  King's  Bench 
must  be  affirmed.  The  purpose  of  this  ac- 
tion is  to  recover  a  compensation  for  some 
damage  supposed  to  be  sustained  by  the 
plaintiif  by  reason  of  the  libel.     The  ten- 


Curia  Christianitatus  dummodo  non  peta- 
tur  pecunia  sed  agatur  ad  correctionem 
peccati. 

(z)  Vaughan,  C.  J.  2  Vent.  28,  observes 
*'  In  the  ancient  books  we  do  not  meet  with 
an  action  for  words  unless  the  slander  con- 
cerned life." 

(a)  Supra,  12,  13,  &c. 


LIBEL.  166 

diction  was  abolished,  were  imported  into  the  common  law  prac- 
tice. 

*The  authorities  already  cited  leave  little  to  be  said  in  [  *167  J 
relation  to  the  extent  of  the  actum  for  Blander  commnni- 
i  by  means  of  writing,  printing,  pictures,  or  other  signs. 

According  to  Lord  Coke  (//).  every  infamous  libel  is  either  t« 

writing;  or  without  writing.     A  scandalous  libel  in  writing  is,  when 

an  epigram,  rhyme,  or  other  writing,  is  composed  or  published  to  the 

idal  or  contumely  of  another,  by  which  his  fame  or  dignity  may 

lie  prejudiced. 

Thus  in  the  case  of    Oropp  v.  Tilnejj  (c),  already  cited,  Lord  C. 
J.  Holt  said,  that  scandalous  matter  was  not  necessary  to  make  a 
libel,  that  it  was  enough  if  the  defendant  induced  an  ill  opinion  to 
be  had  of  the  plaintiff,  or  made  him  contemptible  and  ridiculous. 
So  according  to  the  doctrine  laid  down  in    VUlars  v.  Monsley  (a), 
the  publishing  any  thing  concerning  another  which  renders  him  ri- 
diculous, or  tends  to  hinder  mankind  from  associating  or  having  inter- 
course with  him,  is  actionable.     And,  therefore,  to  pub- 
lish in  writing  of  another  that  he  is  a  rogue  or  a 'rascal,   [  *168  ] 
swindler  or  villain,  is  actionable,  although  the  terms  would 
not  have  been  actionable  had  they  been  merely  spoken.     So  it  is  to 
tax  a  man  by  such  means  with  want  of  honesty,  civility,  humanity  (Jb) 
or  veracity  (c)  [a  a]. 

But  where  the  defendants  posted  up,  in  a  public  room  the  follow- 
ing notice,  "  The  Rev.  J.  Robinson  (the  plaintiff)  and  Mr.  J.  K., 
inhabitants  of  this  town,  not  being  persons  that  the  proprietors  or 
annual  subscribers  think  it  proper  to  associates  with,  are  excluded 
this  room:"  it  was  held  that  the  publication  was  not  actionable. 
And  the  ground  of  this  decision  seems  to  have  been  this,  that  an  im- 
putation of  such  a  nature  is  not  actionable  unless  it  represents  the 
plaintiff  as  an  improper  person  for  general  society,  but  that  the  al- 
leged libel  did  not  go  to  that  extent ;  it  merely  asserted  the  opinion 
of  the  defendants,  that  the  parties  excluded  were  not  prop  >r  persons 

(y)  5  Rep.  125.  3  B.  &  C.  33,  4.  Viilart  v.  M<m$Uy,  2  W 

(z)  3  Salk.  226,    See  also  Vtllart  v.  J\l„son  v.  Stuart,  1   T.  K.  7K     Ihll  v. 

Monsley,    2    Wilson,  403.     An   action    is  Slone,  1  15.  \  P. 

maintainable  for  slander,  either  written  or  (r)   Ray. 

printed,  provided  the  tendenoy  of  it  be  to  [a  a]  It  is  no  defence  to  an  action  for  a 

bring  a  man  into  hatred,  contempt  or  ridi-  libel  tending  to   make   a   man  ridiculous, 

cule.     Per   Bayley,   J.    in    Macgrcgor   v.  that  he  himself  told   the   same  story  to  a 

Thwaites,  3  B.  &  C.  33.  P«ty  of  friends.   Cook  v.  Ward,  G  Bingh. 

(a)  2  Wils.  403.  4M- 

18* 


168  CIVIL  REMEDY  : 

to  be  associated  with  by  them,  and  that  might  proceed  from  reasons 
which  did  not  at  all  affect  or  impeach  the  moral  character   of  the 

parties  (d~). 
r  *169  ]         *The  libel  without  writing-  may  be,  1st.  By  pictures,  as 
to  paint  the  party  in  any  shameful  or  ignominious  manner. 
2ndly.     By  signs,  as  to  fix  a  gallows,  or  other  reproachful  or  ig- 
nominious signs,  at  the  party's  door,  or  elsewhere. 

Upon  the  whole,  it  may  be  collected,  that  any  writings,  pictures, 
or  signs,  which  derogate  from  the  character  of  an  individual,  by  im- 
puting to  him  either  bad  actions  or  vicious  principles,  or  which  di- 
minish his  respectability  and  abridge  his  comforts,  by  exposing  him 
to  disgrace  and  ridicule,  are  actionable,  without  proof  of  special 
damage  ;  in  short,  that  an  action  lies  for  any  false,  malicious,  and 
personal  imputation,  effected  by  such  means,  and  tending  to  alter 
the  party's  situation  in  society  for  the  worse. 

This  rule,  though  apparently  very  wide  and  comprehensive,  can- 
not be  considered  to  be  more  extensive  than  the  justice  of  the  case 
demands.     No  man,  abstractedly,  has  a  right  to  lessen  the  comforts 
or  enjoyments  of  another  ;  and  when  he  does  it  deliberately,  wan- 
tonly, and  maliciously,  it  would  be  an  insult  to  common  sense  to 
contend,  that  he  is  not  bound,  upon  the  plainest  grounds  of  policy 
and  justice,  to  make  compensation  for  the  mischief  so  occasion- 
ed :   and  no  inconvenience  can  result  from  the  rule ;  it 
[  *170  ]     must  be  recollected,  that  the  only  question  at  *present  is, 
as  to  the  nature  of  the  damage  which  must  have  been 
sustained  to  make  the  scandal  actionable  :  this  damage  is,  however, 
but  one  of  two  essential  requisites  for  the  supporting  an  action. 
To  render  the  right  complete,  such  damage  must  have  been  occa- 
sioned, as  will  afterwards  be  seen,  by  the  malicious  act  of  the  de- 
fendant.    This  further  requisite,  of  malice,  that  is  of  malice  in  the 
legal  sense  of  the  term,  precludes  litigation  in  all  cases  where  the 
party  has  acted  in  the  discharge  of  any  legal  or  moral  duty,  or  in 
the  fair  and  conscientious  performance  of  his  part  in  any  transaction 
arising  out  of  the  ordinary  business  of  life,  without  a  deviation  for 
malevolent  purposes,  and  confines  the  action  to  those  instances  in 
which  the  mischief  is  attributable  either  to  mere  malice  of  heart, 
or  to  a  wanton  and  guilty  disregard  of  the  feelings  and  interests 
of  others. 

{d)  As  by   publishing  of  a  tradesman,     Fitzg,  121. 
that  he  shoots  out  of  a  leathern  gun.     Her-         (e)  Robinson  v.  Jermyn,  1  Price,  11. 
man  v.  Delany,  2  Str.  898.  Raymond,  289. 


LIBEL.  170 

It  is  said,  by  the  learned  author  of  the  commentaries,  that  (/), 
"  as  to  signs  or  pictures,  it  seems  necessary  always  to  show,  by 
proper  innuendos  and  averments  of  the  defendant's  meaning,  the 
import  and  application  of  the  Bcandal,  and  thai  some  special  dam- 
age has  followed ;  otherwise  it  cannot  appear  thai  snch  libel  by 
pictures,  was  understood  to  be  levelled  at  the  plaintiff,  or  that  it 
was  attended  with  any  actionable  consequences"  It 
seems,  however,  to  he  very  MiOieult  to  conceive  any  "171  ] 
sound  distinction  between  written  and  printed  libels. 

A  man  may  be  as  successfully  exposed  to  ridicule  by  a  caricature 
painting,  as  by  any  written  misrepresentation  ;  and  the  object  of 
the  defendant  may  lie  as  clearly  manifested  in  the  latter  cat 
the  former.  The  difficulty,  indeed,  of  proving  the  plaintiff  to  be 
the  person  aimed  at,  may,  in  some  instances,  lie  greater  in  the  latter 
case;  but  when  the  doubt  as  to  the  defendant's  application  of  the 
calumny  has  been  overcome,  there  seems  to  be  no  room  for  further 
distinction. 

The  pencil  of  the  caricaturist  is  frequently  an  instrument  of  ridi- 
cule more  powerful  than  the  press  ;  and  it  is  not  easy  to  conceive  an 
imputation  which  an  ingenious  artist  would  not  be  able  successfully, 
to  communicate  to  minds  of  even  the  meanest  capacity.  A  man  may 
be  effectually  held  up  as  the  object  of  ridicule,  contempt,  or  hatred 
by  means  of  a  picture,  as  by  the  most  labored  form  of  words  :  in 
legal  consideration,  the  only  question  is,  whether  the  mode  of  de- 
famation which  has  been  adopted  be  capable  of  conveying  that 
meaning  which  is  detrimental  to  the  plaintiff?  If,  in  fact,  such 
modes  be  equally  distributable,  and  equally  durable, —  in  short, 
equally  mischievous  in  every  respect,  they  cannot  be  con- 
sidered as  distinguishable,  for  legal  'purposes,  upon  any  '17:2  ] 
principle  of  reason  and  good  sense  ;  and  no  such  dis- 
tinction is  to  be  found  in  the  reports.  It  was  expressly  held  by 
Holt,  C.  J.  that  "  In  case  upon  libel  it  is  sufficienl  if  the  n 
be  reflecting  (g)  ;  as  to  paint  a  man  in  any  disgraceful  situation." 

The  plaintiff  (//)  brought  an  action  of  trespass  againsl  the  de- 
fendant for  destroying  a  picture  of  the  plaintiff's.  Upon  .the  trial 
it  appeared  that  the  picture  in  question,  entitled  La  Belle  el  La 
Bete,  was  a  caricature  representation  of  a  gentlemen  and  his  wife, 
who  was  sister  to  the  defendant,  and  that  it   had  been  publicly   6X- 

(/  )  3  Bl.  Com.  126.  (?)   LI  Mod.  99.    Bee  also  2  Eawk.  PL 

(h)  Du  Bost  v.  Beresford,  2  Camp.  C.  0,  78.  8.  2.  5  Co.  126.  Skinner,  128.  3 
Rep.  511.  Kcb.  378. 


172  CIVIL  EEMEDY: 

hibited  for  money  till  the  defendant  cut  it  in  pieces.  The  plaintiff 
insisted  that  he  was  entitled  to  the  full  value  of  the  picture,  together 
with  a  compensation  for  the  loss  of  the  exhibition.  The  defendant 
contended  that  it  was  a  public  nuisance,  which  every  one  had  a  right 
to  abate  by  destroying  the  picture. 

Lord  Ellenborough,  C.  J.  "  The  only  plea  upon  the  record  be- 
ino-  the  generaHssue  of  '  not  guilty,'  it  is  unnecessary  to  consider 
whether  the  destruction  of  this  picture  might  or  might  not 
[  *173  ]  have  been  justified.  If  it  was  a  libel  upon  the  *persons 
introduced  into  it,  the  law  cannot  consider  it  valuable  as 
a  picture.  Upon  an  application  to  the  Lord  Chancellor,  he  would 
have  granted  an  injunction  against  its  exhibition  ;  and  the  plaintiff 
was  both  civilly  and  criminally  liable  for  having  exhibited  it."   [1] 

There  remaius  a  class  of  communications  differing  from  those  last 
adverted  to,  and  which,  though  accompanied  with  circumstances  of 
cooler  deliberation  and  more  settled  purpose  than  words  merely 
spoken,  are  not  calculated  to  produce  such  lasting  and  widely  ex- 
tended consequences  as  those  effected  by  writings  or  pictures. 

The  vulgar  custom  of  riding  Skimmington  (i)  and  the  practice  of 
carrying  or  burning  the  effigies  of  persons  intended  to  be  held  out 
as  public  objects  of  disgrace  and  ridicule,  are  instances  of  this 
description.  The  impressions  made  by  such  proceedings  are  natural- 
ly more  lasting,  and  are  likely  to  produce  a  greater  degree  of  mis- 
chief than  words  merely  spoken ;  and  yet  the  calumny  is  not  so 
durable  as  if  it  had  been  conveyed  in  print  or  in  writing. 
[  *174  ]  As,  however,  these  are  means  by  *which  a  man  may  be 
rendered,  in  many  instances,  contemptible  and  ridiculous, 
and  in  others  may  be  exposed  to  the  serious  effects  of  popular  in- 
dignation and  resentment, — as  the  act  of  the  defendant  is  more 
studied  and  deliberate,  and  the  consequences  more  mischievous  than 
those  likely  to  be  occasioned  by  mere  oral  slander,  it  seems  to  be 
clear  that  such  representations  are  actionable,  as  falling  within  the 
same  consideration  with  the  other  cases  which  have  formed  the  sub- 
ject of  the  present  chapter. 

(i)  Supra.     See  Lord  Holt's  dictum  in  Ham  Bolton  v.  Dean,  where  an  action  was 

Cropp  v.  Tilney,   3  Salk.   226.     And  see  maintained  for  scandalizing  the  plaintiff,  by 

Justin     v.     Culpepper,   1     Show.     314,  carrying  a  fellow  about  with  horns,  bowing 

where  the  court  cited  the  case  of  Sir  Wil-  at  the  plaintiff 's  door,  &c. 

[1]  See  Eden  on  Injunctions,  ch.  14,  where  the  opinion  of  Lord  Ellenborough  as  to 
the  granting  of  an  injunction  is  questioned,  and  the  cases  on  the  subject  reviewed. 


LIBEL.  1 75 

Thus  an  action  has  been  supported  for  setting  up  a  lamp  adjoining 
to  the  dwelling-house  of  the  plaintiff,  and  keeping  it  burning  in  the 
day-time,  with  intent  to  defame  the  plaintiff  as  the  keeper  of  a 
brothel  (Ac). 

(k)  Jeffries  v.  Duncombe.  11  East,  220,  and  see  Spall  s.Masscy,  2  Starkie's  C  669. 


CHAPTER  VI. 


Of  Scandalum  Magnatum. 

"Words  spoken  in  derogation  of  a  peer  or  judge,  or  other  great 
officer  of  the  realm,  are  usually  called  Scandalum  Magnatum  ;  and 
though  they  be  such  as  would  not  be  actionable  when  spoken  of  a 
private  person,  yet  when  applied  to  persons  of  high  rank  and  digni- 
ty, they  constitute  a  more  heinous  injury,  which  is  redressed  by  an 
action  on  the  case  founded  on  many  ancient  statutes,  as  well  on  be- 
half of  the  crown,  to  inflict  the  punishment  of  imprisonment  on  the 
slanderer,  as  on  the  behalf  of  the  party  to  recover  damages  (-a)  for 
the  injury  sustained. 

Under  this  division  will  be  considered, 

l.The  grounds  of  the  action. 

2.  The  parties  entitled  to  maintain  it. 

8.  The  nature  of  the  words  which  will  support  it. 
[  *176  ]  The  statute  (6)  3  Ed.  1.  c.  34.  after  premising  *that 
"  Forasmuch  as  there  have  been  oftentimes  found  in  the 
country  devisors  of  tales,  whereby  discord,  or  occasion  of  discord, 
hath  many  times  arisen  between  the  king  and  his  people,  or  great 
men  of  the  realm,"  enacts,  "  that  from  henceforth  none  be  so  hardy 
to  tell  or  publish  any  false  news  or  tales,  whereby  discord,  or  occa- 
sion of  discord,  or  slander,  may  grow  between  the  king  and  his 
people  or  the  great  men  of  the  realm ;  and  he  that  doth  so,  shall  be 
taken  and  kept  in,  until  he  hath  brought  him  into  court  which  was 
the  first  author  of  the  tale." 

By  2  R.  2.  st.  1.  c.  5.  "  Of  devisors  of  false  news  and  of  hor- 
rible and  false  lies,  of  prelates,  dukes,  earls,  barons,  and  other 
nobles  and  great  men  of  the  realm  ;  and  also  of  the  chancellor, 
treasurer,  clerk  of  the  privy  seal,  steward  of  the  king's  house,  jus- 
tices of  the  one  bench  or  of  the  other,  and  of  other  great  officers  of 
the  realm,  of  things  which  by  the  said  prelates,  lords,  and  officers 
aforesaid,  were  never  spoken,  done,  nor  thought,  in  great  slander  of 

(a)  3  Blac.  Com.  123.  see  2  Mod.  152.     Barrington  on  the  Penal 

(6)  For  the  history  of  these   statutes,     Statutes.  3  Reeve's  Hist,  and  1  Pari.  Hist. 


SCANDALUM  MAGNATUM.  176 

the  said  prelates,  lords,  nobles,  and  officers,  whereby  debates  and 
discords  might  arise  betwixt  the  said  Lords,  or  between  the  lords  and 
commons  (which  God  ibrbid),  and  whereof  great  peril  and  mischief 
might  come  to  all  the  realm,  and  quick  subversion  and  destruction 
of  the  said  realm,  if  due  remedy  be  not  provided.     It  is 
straitly  defended  upon  grievous  'pain,  for  to  eschew  the  [  '177  ] 
said  damages  and  perils,  that  from  henceforth  none  I 
hardy  to  devise,  speak,  or  to  tell  any  false  new.-,  lies,  or  other  such 
false  things,  of    prelates,  lords,  and  of  others  aforesaid,  whereof 
discord  or  any  slander  mighl   rise  within  the  said  realm  :  and  he 
that  doth  the  same  shall  incur  and  have  the  pain  another  time  or- 
dained thereof  by  the  statute  of  Westminster  the  first,  which  will, 
that  he  be  taken  and  imprisoned  till  he  have  found  him  of  whom  the 
word  was  moved." 

Also  by  the  12  R.  2.  c.  11. — "  Item.  Whereas  it  is  contained  as 
well  in  the  statute  of  Westminster  the  first,  as  the  statute  made  at 
Gloucester,  the  second  year  of  the  reign  of  our  Lord  the  king  that 
now  is,  that  none  be  so  hardy  to  invent,  to  say,  or  to  tell  any  false 
news,  lies,  or  such  other  false  things,  of  the  prelates,  dukes,  earls, 
barons,  and  other  nobles  and  great  men  of  the  realm,  and  also  of 
the  chancellor,  treasurer,  clerk  of  the  privy  seal,  and  stewards  of 
the  king's  house,  the  justices  of  the  one  bench  or  of  the  other,  and 
other  great  officers  of  the  realm  ;  and  he  that  doth  so  shall  be  taken 
and  imprisoned  till  he  hath  found  him  of  whom  the  speech  shall  be 
moved.  It  is  accorded  and  agreed  in  this  parliament,  that  when 
any  such  is  taken  and  imprisoned,  and  cannot  find  him  by  whom 
the  speech  be  moved,  as  before  is  said,  that  he  be  punished  by  the 
advice  of  the  council,  notwithstanding  the  said  statutes." 

*It  does  not  appear  to  be  very  clear,  whether,  before  L78  ] 

these  statutes,  any  words  would  have    been  actionable 
when  applied  to  a  peer  or  other  person  of  high  rank  and  dignity, 
.  which  would  not  have  been  deemed  so  in  the  case  of  a  private  per- 
son (c). 

In  the  case  of  Ld.  Townsend  v.  Dr.  Hughes  c/>,  the  words 
were,  "  lie  is  an  unworthy  man,  and  acts  against  law  ami  reason  :" 
and  ScroggS  and  Atkins,  justices,  were  of  opinion  that  by  the  com- 
mon law  no  action  would  lie,  though  Such  words  were  spoken  of  a 
peer;  but  North,  C.  J.  considered  the  words  to  have  been  action- 
able at  Common  Law  ;  and  held,  that  no  words  would  be  actionable 
under  the  statute  which  were  not  so  at  Common  Law. 

(c)  See  Buller  L.  N.  P.  4,  and  12  Co.  133.  (d)  2  Mod.  150. 


178  CIVIL  REMEDY: 

"Whether  such  a  distinction  prevailed  or  not  at  Common  Law,  is 
at  present  a  matter  of  curiosity  rather  than'of  practical  importance, 
for  it  lias  been  established  by  a  long  train  of  decisions,  that  the  dis- 
tinction, if  not  created,  has  at  all  events  been  considered  as  war- 
ranted, by  the  operation  of  the  statutes  alluded  to. 

Upon  these  it  has  been  held,  that  a  remedy  by  action  has  been 
given  to  the  gueat  men  of  the  realm,  entitling  them  to  a  compensa- 
tion in  damages  for  injurious  reflections  upon  their  char- 

*179  ]  acter,  *though  the  statutes  themselves  no  not  in  express 
terms  profess  to  bestow  such  a  remedy.  And  this  doc- 
trine is  founded  upon  the  general  rule,  that  whenever  (e)  a  party  is 
prejudiced  by  the  doing  of  that  which  is  prohibited  by  statute,  he  is 
entitled  to  damages.  It  is  a  remarkable  circumstance,  that  from 
the  time  of  passing  the  st.  12  Rich.  2,  no  civil  action  appears  from 
the  reports  to  have  been  founded  upon  it  before  the  (/)  thirteenth 
year  of  Henry  the  Seventh,  comprising  an  interval  of  more  than  a 
century. 

2.  Next  as  to  the  parties  entitled  to  maintain  this  action. 

As  the  statute  2  R.  2.  st.  1.  c.  5,  commences  with  an  enumera- 
tion of  persons  inferior  in  rank  to  the  king,  it  has  been  held,  that 
the  tatter  is  not  included  (#•)  within  the  general  words, '"  and  great 
men  of  the  realnr"  But  (/*)  that  he  is  included  within  the  first  of 
Westminster. 

The  action  has  been  adjudged  to  extend  to  orders  of  nobility  cre- 
ated since  the  making  of  these  statutes  ;  so  that  although  the  stat. 
2  R.  2,  specifically  mentions  dukes,  earls,  and  barons 
[  *180  ]  only,  a  viscount  (i)  has  been  considered  to  be  *entitled 
to  the  action,  though  the  title  is  of  much  (&)  later  crea- 
tion. It  has  been  said  (/),  that  a  female,  noble  by  birth,  is  not  with- 
in the  statute  ;  but  it  is  difficult  to  say  upon  what  principle  a  peer- 
ess is  excluded  from  the  benefit  of  this  statutable  protection. 

As  the  words  derive  their  actionable  essence  from  their  applica- 
tion to  the  dignitaries  specified  in  the  statute,  it  must  appear  that 
the  plaintiff  held  his  rank  at  the  time  when  the  words  were  pub- 
lished (m). 

(e)  Keil.  2G.  (t)  Cro.  Car.  136.  Palm.  165. 

(/)  Ld.   Townsend  v.   Dr.  Hughes,  2         (ft)  John  Beaumont,  the  first  Viscount, 

Mod.  162.  10  Co.  75.  was  created  such  18  H.  6. 

{<?)  Cromp.  Jur.  19.  35.  6  Bac.  Ab.  97.         (1)  Crom.  Jur.  35.    6  Bac.  Ab.  97. 
12  Co.  133.  (m)  Vent.  60. 

(ft)  12  Rep.  133. 


SCANDAM'M   MAGNATUM.  180 

By  the  act  of  anion  (n)   with  Scotland,  it  is  enacted  that  all 
peers  of  Scotland  shall  also  be  pee']  tat  Britain,  and  enjoy  all 

privileges  as  fully  as  peers  of  England,  except  of  Bitting  in  the 
House  of  Lords  and  the  privileges  depending  thereon.  Under  this 
clause  it  has  been  determined, that  ape  ■  on  •  of  the 

magnates  (o)  to  whom  this  statute  extends ;  and  ii  was  said,  that 
though  it  had  l n  customarj  in  Buch  action  to  aver  that  the  plain- 
tiff had  a  vote  and  seat  in  parliament,  Buch  an  averment  was  super- 
fluous. 

•It  seems  that  the  action  is  maintainable  by  a  Baron     [  '181   J 
(<7)  of  the  Exchequer,  though  the  statute  mentions  only 
Justices  of  the  one  beneh  or  the  other. 
•     8.   What  words  will  support  the  action. 

The  grounds  of  the  action  and  the  effect  of  these  statutes,  under- 
went much  learned  discussion  in  the  case  of  Lord  Town&end  v.  Dr. 
Hughes  ('/>),  which  has  been  already  referred  to.  The  action  was 
there  brought  for  speaking  the  words,  "  He  is  an  unworthy  in  an. 
and  acts  against  law  and  reason."  Upon  not  guilty  pleaded,  the 
cause  was  tried,  and  the  jury  gave  4000/.  damages.  Upon  motion 
in  arrest  of  judgment,  Serjeant  Maynard,  for  the  defendant,  allowed 
that  it  was  too  late  to  contend  that  an  action  to  recover  damag 
was  not  maintainable  under  the  statutes  of  Scandaluni  Magnatum 
upon  the  principle  betorc  mentioned,  that  where  a  statute  prohibits 
a  thing  prejudical  to  another,  the  person  prejudiced  is  entitled  to  * 
recover  damages  ;  but  he  insisted  that  the  words  were  not  within 
the  meaning  of  the  acts  ;  because,  the  term  unworthy  imported  no 
particular  crime, — that  it  was  merely  a  term  of  comparison,  and 
that  instances  of  unworthiness  might  be  alleged  which 
would  "not  support  an  action  ;  but  that,  if  the  plaintiff  iv'-   | 

had  been  compared  to  any  base  and  unworthy  thing,  the 

words  would  have  been  actional  le:  as  in  the  Marquis  (r)  of  Dor- 
chester's whom  the  defendant  said, "  There  is  no  more  value 
in  him  than  in  a  dog."    That  to  say  a  man  acts  against  law  and 

reason,  is  no  scandal  :  a  man  who  burii  -  one  of  his  family  in  linen 
acts  against  law.  but  that,  if  the  penalty  be  satisfied,  the  law  is  so 
too.     That  no  instance  \  iven   in  which  the  plaintiff  had  acted 

against  law,  and  therefore  that  the  C  ise  was  unlike  the  Duke  (s)  of 

(n)   5  Ann.c.  8.  Art.  23.  (q)  2  Mod.  160. 

(o)   Lord  Falkland  v.  Phipps,  Comyu's  (r)  Crom.  Jur.  of  Courts. 

Rep.  489.     1  Vin.  Ab.  649.  pL  22.  (O  HiL  10  C.  2.    Hull.  1269. 
(p)  Via.  Pal.  5G5.     12  Co.  133 

Vol.  I.  19 


182  CIVIL  REMEDY  : 

Buckingham's,  who  brought  an  action  for  the  words,"  You  are  used 
to  do  things  against  law,  and  put  cattle  into  a  castle  where  they  can- 
not be  replevied  ;"  for  in  that  case,  not  only  an  usage  was  charged 
upon  him,  but  a  particular  instance  of  oppression.  That  the  words 
in  question  were  uncivil,  but  not  actionable, — that  there  were  many 
authorities  which  shewed  a  peer  not  entitled  to  an  action  for  every 
trivial  and  slight  expression  spoken  of  him.  As  to  say  of  a  peer, 
<'  He  keeps  none  but  rogues  and  rascals  about  (f)  him,  like  himself," 

which  words,  in  the  opinion  of  Yelverton  and  Fleming, 
[  *183  ]  Justices,  were  not   actionable.       *That  the  statute  was 

made  to  punish  those  who  devised  "  false  news,  and 
horrible  and  false  lies  of  any  peer,"  &c.  whereby  discords  might 
arise  between  the  lords  and  commons,  and  great  peril  and  mischief 
to  the  realm,  and  quick  subversion  thereof.  But  that  it  could  not 
be  contended,  under  the  fair  construction  and  intent  of  the  act,  that 
if  one  should  say,  "  Such  a  peer  is  an  unworthy  man,"  the  king- 
dom would  be  presently  in  a  flame,  and  turned  into  a  state  of  con- 
fusion and  civil  war;  or,  that  the  state  would  be  endangered  by 
saying  of  a  peer,  "  he  acts  against  'the  law."  That  the  plaintiff 
was  placed  in  no  hazard  by  the  words,  nor  in  any  wise  damnified  ; 
he  was  not  touched  in  his  loyalty  as  a  peer,  nor  in  danger  of  his 
life  as  a  subject ;  he  was  not  thereby  subjected  to  any  corporeal  or 
pecuniary  punishment,  nor  charged  with  any  breach  of  oath,  nor 
any  miscarriage  in  office. 

It  was  answered  by  Pemberton,  Serjt.  that  it  was  the  end  and 
object  of  these  statutes  to  give  a  remedy  against  all  provoking-  and 
vilifying-  words  which  were  used  before  to  exasperate  the  peers,  and 
to  make  them  betake  themselves  to  arms,  and  to  carve  out  their  own 
remedy  by  the  sword.  That  since  the  design  of  the  statute  was  to 
prevent  such  practices,  not  only  those  words  were  to  be  considered 

as  falling  within  their  scope,  which  imported  great  scan- 
[  *184  ]    dal,  *and  for  which  an  action  lay  at  the  common  law,  but 

even  such  things  as  savored  of  any  contempt  of  their 
persons,  and  such  as  brought  them  into  disgrace  with  the  commons, 
whereby  they  took  occasion  of  prosecution  and  revenge.  And  he 
cited  Lord  Cromwell's  case  (u),  where  the  words  were,  "You  like 
those  who  maintain  sedition."  The  Earl  of  Lincoln's  case,  "  My 
lord  is  a  base  earl,  and  a  paltry  earl,  and  keepeth  none  but  rogues 
and  rascals  like  himself." 

(i)  Earl  of  Lincoln's  case,  Cro.  J.  196.  (u)  4  Co.  13.     Cro.  J.  196. 


SC  AND  ALUM  MACJXATUM.  184 

The  Duke  of  Buckingham'*  ease  (as),  li  He  has  no  more  con- 
science than  a  dog." 

The  Marquis  of  Dorchester's  case,  "  lie  is  no  more  to  1"'  valued 
than  the  black  dog  that  lies  there." 

All  which  words  had  been  held  to  be  actionable,  though  nut  touch- 
ing the  persons  in  any  thing  concerning  the  government,  nor  charg- 
ing them  with  any  crime,  but  in  point  of  dignity  and  honor. 

Scroggs,  J.  observed,  that  "  the  words  here  laid  are  not  bo  bad 
as  the  defendant  might  have  spoken,  but  they   are  so  bad  that  an 
action  will  lie  for  them;  and  though  they  are  general,  many  ca 
may  be  put  of  general  words  which  import  a  crime,  and  which  have 
been  adjudged  actionable." 

*In  the  Earl  of  Leicester's  case,  "  He  is  an  oppressor/  [  *185  J 
were  held  actionable. 

And  in  Lord    Winchester's  case,  "  Tie  kept  me  in   prison,  till  I 
gave  him  a  release,"  were  deemed  to  be   actionable,  because 
plain  inference  from  them  is,  that  he  was  an  oppressor. 

And  so,  in  Lord  Abergavenny's  case, ':  He  sent  for  me,  and  put  me 
in  Little  Ease."     It  appears  by  all  th  lat  the  judges  haw- 

always  construed  in  favor  of  th  so  actions;  and  this  has  been  done 
in  all  probability  to  prevent  tho  -  i  rs  which  otherwise  might 
ensue  if  the  lords    hould  take  revenge  themselves. 

Atkyns,  J.  held,  hat  under  the  construction  of  the  statute,  the 
words  to  be  actionable  must  be  horrible  as  well  '    .  and  such  as 

were  punishable  in  the  high  commission  court,  which  were  enormous 
crimes.     That  the  statute  did  no!   e:  I    id  to  words  of  a  small   and 
trivial  nature,  nor  to  all  words  which   '..ere  actionable,  bul     nly  to 
such  as  were  of  a  greater  magnitude,  such  by  which  disc  >rd  might 
arise  between  the  lor  Is  and  commons,  to  the  great  peril  of  the  "ealm, 
and  such  which  arc  great  slanders  and  horrible  lies,  which  ai 
purposely  put  into  this  statute  for  the  aggravation   and  distinction 
of  the  crime;  and,  therefore,  such    words  as  were  actionable  at  the 
common  law  might  not  be  so  within  this  statute,  because 
not  horrible   great  scandals.     The   learned   'judge  also    [   "ls,»    ] 
observed,  that  in  the  Duke  of  Buckingham's  case  (y), 
(which  was  the  second  which  appears  to  have  been  determined  in 
an  action  on  the  statute,)  where  the  defendant  -aid,  M  You  have  no 
more  conscience  than  a  dog ;"  and  in  the  case  of  Lord  Abergavi  nny 
v.  Cartwright,  "  You  care  not  how  you  come  by  goods,"  the  words 

(.c)  Hil.  1G,  c.  2.     Roll.  1269.  (y)  4  Hen.  8.     Cromp.  Jur 


186  CIVIL  REMEDY: 

charged  the  plaintiff  with  particular  matter,  and  did  not  rest  barely 
upon  opinion. 

That  in  the  case  of  the  Bishop  of  Norwich  (2),  the  words,  "  you 
have  writ  to  me  that  which  is  against  the  word  of  God,  and  to  the 
maintainance  of  superstition,"  were  held  actionable,  because  they 
refer  to  his  function,  and  greatly  defame  him.  That  in  the  case  of 
Lord  Mordant  y.  Bridges  (a),  the  words  "  My  Lord  Mordant  did 
know  that  Prude  robbed  Shotbolt,  and  bade  me  compound  with 
Shotbolt  for  the  same  ;  and  said,  he  would  see  me  satisfied  for  the 
same,  though  it  cost  him  an  hundred  pounds,  which  I  did  for  him, 
being  my  master,  otherwise  the  evidence  I  could  have  given  would 
have  hanged  Prude,"  were  held  actionable;  and  that  both  in  this, 
and  in  all  the  other  cases  which  had  been  mentioned  on  the  statute, 
and  where  judgment  had  been  given  for  the  plaintiff,  the  words  had 
always  charged  him  with  some  particular  fact,  and  were 

*187  "  *positive  and  certain  ;  but  that  where  they  were  doubtful 
and  general,  and  signified  only  the  opinion  of  the  defend- 
ant, they  were  not  actionable.  That  the  words  in  the  case  at  bar 
neither  related  to  the  plaintiff  as  a  peer,  nor  as  a  lord  lieutenant, 
and  charged  him  with  no  particular  crime;  and  that  if  the  laws 
were  expounded  to  rack  people  for  words,  instead  of  remedying  one 
mischief,  many  would  be  introduced  ;  for  in  such  case  they  would  be 
made  snares  to  men.  He  farther  said,  that  it  was  fit  the  law  should 
be  settled  by  some  rule,  because  it  is  a  wretched  condition  for  people 
to  live  under  such  circumstances  as  not  to  know  how  to  demean 
themselves  towards  a  peer  ;  and  that  since  no  limits  had  before  been 
prescribed,  it  was  fit  there  should  be  some  then,  and  that  the  court 
should  go  by  the  same  rules  in  the  case  of  a  peer  as  in  that  of  a 
common  person  ;  that  is,  not  to  construe  the  words  actionable,  with- 
out some  particular  crime  charged  upon  the  plaintiff,  or  an  allega- 
tion of  special  damage. 

North,  C.  J.  and  Wyndham,  J.  agreed  with  Scroggs,  the  former 
being  of  opinion,  that  all  words  reflecting  upon  a  peer,  as  he  is  the 
king's  counsellor,  or  as  he  is  a  man  of  honor  and  dignity,  are  ac- 
tionable at  the  common  law.  That  in  many  cases  where  a  man 
should  express"  his  particular  disesteem,  an  action  would 
[  *188  ]  not  lie,  as  if  he  *had  said,  "  I  care  not  for  such  a  lord," 
but  that  words  of  general  opinion  and  disesteem  were  ac- 
tionable, as  was  held  in  the  Marquis  of  Dorchester's  case  (&)  ; 
and,  by  the  opinion  of  North,  C.  J.  and  Wyndham  and  Scroggs, 
Justices,  judgment  was  given  for  the  plaintiff. 

(z)    Cro.  Eliz.  1.     ■  (a)  Cro.  Eliz.  67.  (6)  1  Sid.  293. 


SCANDALUM  MAGNATUM.  188 

And  in  the  case  of  the  Earl  of  Pembroke  v.  Staniel  (c),  the 
words  were,  '"The  Earl  of  Pembroke  is  of  so  little  esteem  in  the 
country,  that  no  man  of  reputation  hath  any  est  sem  for  him  ;  he  is 
a  pitiful  fellow,  and  no  man  will  take  his  word  for  two-p  1  no 

man  of  reputation  values  him  more  than  1  do  the  dirt  under  my 
feet;"  and  they  wore  hold  to  be  actionable  under  the  statute,  though 
they  would  not  have  been  so  in  the  case  of  a  private  person. 

And  in  the  case  of  Ld.  Falkland  v.  Phipps  (d),  the  terms 
villain,  villainous  rogue,  scrub,  and  scoundrel,  were  held  actionable. 

From  these  cases  it  appear-,  that  general  expressions  of  contempt 
and  disesteemi  tending  to  degrade  and  vilify  the  characters  of  peers 
and  great  officers  of  the  realm,  are  actionable,  as  well  as  those 
which  impeach  their  loyalty,  or  impute  the  commission  of  any  crimi- 
nal and  disgraceful  fact.     'Where  words  are  spoken  of 
a  peer,  which  would  he  actionable  as  spoken  of  a  private 
person,  the  plaintiff  has  it  at  his  option  (e)  to  proceed 
either  upon  the  statute,  or  in  the  usual  form  of  action. 

The  incidents  peculiar  to  Scandalum  Magnatum,  as  relating  to 
the  process,  pleading,  justification,  Arc.  will  be  considered  in  common 
with  the  corresponding  ones  belonging  to  the  proceeding  at  common 
law. 

(c)  Freem.  Rep.  49.     1  Vin.  Abr.  510.       (e)  Per  Twisden.  Freem.  Rep.  49.  pi.  58. 
{d)  Comyn's  Rep.  449. 


19* 


CHAPTER  VII. 


Special  Damage. 

*Thus  far  as  to  damage  in  lav,  that  is,  as  to  those  com- 
[  *190  ]    munications  which  are  deemed  to  be  of  so  hurtful  a  na- 
ture, that  the  law  presumes  a  consequent  damage  without 
actual  proof.     In  all  other  cases,  some    actual  specific  damage,  in 
fact,  is  essential  to  support  an  action. 
Here  two  questions  arise, 

1.  What,  in  legal  contemplation,  amounts  to  an  actual  damage  ? 

2.  How  must  such  damage  be  connected  with  the  slander,  to 
constitute  a  ground  of  action  ? 

1.  'What,  in  legal  contemplation,  amounts  to  an  actionable  dam- 
age ? 

The  defendant's  act  affects  either  rights  already  acquired,  or  pre- 
vents the  acquisition  of  some  further  benefit  or  advantage. 

Where  the  plaintiff  has  been  wrongfully  charged  with  the  com- 
mission of  some  crime,  if  the  imputation  rest  as  a  bare  charge,  not 
officially  made  in  the  usual    course  of  a  criminal  pro- 

*191  ]  ceeding,  the  party,  it  seems,  has  a  right  to  consider  *the 
expense  and  labor  to  which  he  is  put  for  the  purpose  of 
manifesting  his  innocence  as  special  damage. 

As  where  the  plaintiff,  in  consequence  of  an  insinuation  that  he 
was  guilty  of  murder,  was  obliged  to  have  an  inquest  taken  on  the 
body  of  the  deceased  (/). 

But  if  the  defendant  proceed  according  to  the  usual  forms  of 
criminal  prosecution,  though  the  plaintiff  is  entitled  to  recover  dam- 
ages for  the  scandal,  vexation,  and  expense,  brought  upon  him  by 
an  unfounded  and  malicious  accusation,  he  must  proceed  either  by 
an  action  of  conspiracy  or  by  a  special  action  on  the  case,  founded 
upon  the  criminal  proceeding  itself,  and  cannot  recover  (as  will 

(/)  Per  Lord   Mansfield.      Peake  y.  Oldham.     Cowp.  277. 


SPECIAL  DAMAGE.  191 

afterwards  be  soon)  in  a  common  action  for  any  scandalous  matter 
published  in  the  c  >f  such  a  prosecution  i . 

Where  a  party  is  prevented  from  -  slling,  exchanging,  or  making 
any  advantageous  disposition  of  Lands,  or  other  property,  in  con- 
sequence of  the  impertinent  intei  if  the  d  ifendant,  he  may 
maintain  an  action  for  the  inconvenience  which  he  has  Buffered,  but 
special  damage  must  be  shown  ;  and  the  mere  appre- 
hension (A)  that  *iii  consequence  of  the  Blander,  the  [  'I'.'-J  ] 
plaintiff's  title  may  be  drawn  in  question,  will  not  sup- 
port an  action. 

Ami  it.  is  not  sufficient  to  show  generally  tint  the  plaintiff  intend- 
ed to  sell  to  any  one  that  would  buy,  but  he  must  prove  that  he 
was  in  treaty  to  sell  them  to  some  specific  person  (i),  or  at  least 
that  some  one  was  deterred  by  tin-  slander  from  making  an  offer. 
Neither  will  it  suffice  to  show,  that  the  value  of  the  lands  was  les- 
sened in  people's  opinions,  but  proof  must  be  given  of  damage 
actually  sustained.  Where  the  alleged  loss  consists  in  the  pre- 
vention of  the  sale  of  lands,  it  must  appear  that  the  words  directly 
tended  to  defeat  the  plaintiff's  title  (A:). 

In  Sir  W.  Gerrard  v.  Dic/cerson  (/),  it  was  said  by  Wray.  C. 
J.  that  in  all  cases  where  one  doth  entitle  a  stranger,  it  is  not  ac- 
tionable, except  it  be  shown  that  some  damage  comes  to  the  pro- 
prietor by  it,  viz.  that  he  cannot  let  it  or  sell  it,  &c. 

The   defendant  said  (to),  "  M.  has  mortgaged  all   his  lands   tor 
.£100,  and  has  no  power  to  sell  or  let  the  same."     And. 
because  no  special  damage  nor  particular   'colloquium    [  *U>o  ] 
was  laid  of  a  treaty  to  sell  them  to  any  person   certain. 
but  only  in  general  that  he  intended  to  sell  it  to  any  one  that  would 
buy,  which  is  too  general,  judgment  was  stayed. 

In  E/broio  v.  Allen  (m),  the  action  was  brought  for  the  words 
"He  is  but  a  bastard,1'  spoken  of  the  plaintiff,  who  had  lands  by 
descent;  by  means  of  which  he  was  put  to  great  expense  to  de- 
fend his  title.  And  two  of  the  justices,  against  the  opinion  of  Dod. 
eridge,  J.  decided,  that  the  words  were  actionable,  the  plaintiff 

(£)  3  BI.  Com.  126.     10  Mod.  210, 219,        (*)  Burr.  2622, 

220.    Str.  691.  (O  Cro.  i:ii/ 

(h)  Cro.  Eliz.  197.    lVin.Ab.650.pl.        (m)  Manm       i    Jit      ,  8  Keb. 

6.  Yelv.  80.     Cro.  J.  642,  contra.    Et  vide  Yin.   Ah.   658.    pL   21.      Sty.    169.    176. 

Cro.  J.  397.     Sir  W.  Junes,  19G.  Palm. 
(t)  Manning  v.  Avery,  3  Keb.  1G3.  (n)  Cro.  J.  642. 


193  CIVIL  REMEDY: 

having  averred  in  his  declaration  that  he  was  put  to  a  great  charge 

to  defend  his  inheritance  (o). 
T  *194  ]        *And  next,  where  the.  plaintiff  is  prevented  from  ac- 
quiring some  benefit  or  advantage. 

In  general,  where  the  plaintiff  is  hindered  by  the  mere  wrongful 
act  of  the  defendant,  from  succeeding  to  any  preferment,  benefit  or 
advantage  whatever,  he  may  maintain  an  action  for  the  special 
damage. 

As,  if  a  patron  (p)  intend  to  present  a  divine  to  a  benefice,  and 
the  defendant  say  of  him,  "  He  is  an  heretic,  or  a  bastard  ;"  for 
which  reason  the  patron  refuses  to  present  him,  and  he  loses  his 
preferment,  an  action  is  maintainable. 

So,  if  the  defendant  say  of  a  candidate  for  an  office,  that  he  is  an 
ignorant  man  and  unfit  for  the  place,  by  means  of  which  he  loses  it? 
an  action  lies  (#)  [1]. 

(o)  But  it  has  been  held,  that  to  insti-  litigation;  for  such  a  party  has,  by  his  ma- 

tute  a  civil  suit,  though  there  be  no   good  licious   and  impertinent  act,  subjected  an- 

ground   for  it,  is  not  actionable,  because  it  other  to  the  trouble  and  anxiety  of  a  suitt 

is  a  claim  of  right  for  which  the   plaintiff  and  being   a   wrongdoer,  who  has  no  color 

has  found  pledges,  is   amerciable  pro  falso  of  right,  he  stands  in   a  different  situation 

cramore,  and   is  liable  to  costs,  and  there-  from  the  plaintiff  in   the   former  suit,  who 

fore  that  no  action   lies,  unless  the  defend-  merely  sought  a  remedy   by   legal  means; 

ant  be  maliciously   sued,*  with   intent  to  and  to  constitute   special  damage,  it  is  by 

imprison  him  for  want  of  bail.  no    means   essential   that  any  legal  right 

And  it  may  be  urged  that  the  plaintiff  is  should  have  been  abridged.     One  who  does 

precluded  from  recovering  from  the  person  no  more  than  the  law  permits  may  not  be 

who  spoke   the  words  which   brought  his  liable,  and  yet  one  who,  by  undue   means, 

title  into  litigation,  since,  in  contemplation  caused  him  so  to  act,   may  be  responsible, 

of  law,  he  has   been   already  satisfied  for  Thus,  if  A.  slander  B.  in  a  discourse  with 

the  false  claim.  C,  the  patron  of  a  living,  and  C.  in  conse- 

There  is,  however,  a  distinction  between  quence  refuse  to  present  B.,  no  action  lies 

an   action   against  a  former   plaintiff,   for  against  C,  but   an  action   lies  against  A., 

making  a  false  claim,  and  an  action  against  though  B.  never  had  any  legal  claim,  and 

one  who,  by  a  false  and  malicious  sugges-  has  lost  no  right  defined  by  the  law. 

tion,  caused  him  to  assert  the  false  claim,  (/>)  4  Co.  16. 

in  order  to  involve  the  former  defendant  in  (<?)  March.  Rep.  pi.  217.     1  Buls.  138. 

*  See  Saville  v.  Roberts,  1  Salk.  13.  4  Co.  9  Co.  ofi,  b.    1  Roll.  Abr.  112. 


[1]  Whether  at  this  day,  without  proof  of  express  malice,  it  would  be  held  libellous 
in  this  country,  or  in  England',  thus  to  speak  of  a  candidate  for  office,  may  well  be 
doubted.  The  law  recognizes  what  are  called  privileged  communications  relating  to 
matters  affecting  the  government,  its  laws,  policy,  and  the  administration  of  public 
affairs,  the  social  relations  of  life,  and  the  ordinary  transactions  of  business;  in  either 
case  it  protects  from  liability  in  a  civil  action  the  authors  of  such  communications,  al- 
though erroneous  in  fact,  provided  they  acted  upon  an  occasion  warranting  the  com- 
munications, in  good  faith  and  without  the  intent  of  effecting  mischief— the  law  pre- 


SPECIAL  DAMAGE.  194 

*So,  where   a  servant  or  bailiff    is    prevented    from        *195    ] 
getting  a  place  (r). 

(r)  Sfaepp.  Coll.  192. 

Burning  the  innocence  of  the  author,  until  the  contrary  be  Bhown  by  proof  of  express 
malice.     Accordingly  all  communications  made   in  the  d  pri- 

vate, legal  or  moral,  are  protected.     It"  the  o  in  of  an  individual,  in  a  matter 

of  private  business,  made  in  good  faith  and  withoul  another  having  a  common 

interest  in  the  subject  matter,  is  protected,  although  it  injuriously  and  erroneously  as- 
sails the  character  of  a  third  person,  assure  11}*,  a  commu  nether  oral  or  writ- 
ten, discussing  the  character,  t  dents  or  qualifications  of  a  o  mdidate  for  office,  ad  Iresa  1 
to  the  constituency  whose  suffrages  are  solicited,  by  in  lividuals  h  iving  a  common  inter- 
est in  the  matter,  must  be  deemed  a  privileged  oommunica 

In  conformity  with  these  views  it  has  been  held  in  South  Carolina  in  the  case  of 
Mai/rant  v.  Richardson,  1  Nott  and  McCord,  327,  that  an  action  of  slan  ler  would  not 
lie  for  a  publication  in  reference  to  a  candidate  for  the  office  in  which  it  was  alleged  that 
the  mind  of  the  candidate  was  impaired.  Judge  Nott  observed,  when  a  man  becomes 
a  candidate  for  public  honors,  he  makes  profert  of  himself  for  public  investigation.  No 
one  has  the  right  to  impute  to  him   infamous  crimes  or    I  nors;  but  talents  and 

qualifications  are  mere  matters  of  opinion,  of  which  the  electors  are  the  only  judges.  So 
in  the  case  of  The  Commonwealth  v.  Clapp,  4  Mass.  R.  163,  Chief  Justice  P ABSORB 
held  substantially  the  same  doctrine.     "  When  any  man,"  he  says,  "  Bh  i  to  be 

a  candidate  for  public  office,  conferred  by  the  election  of  the  people,  he   must  bo 
sidered  as  putting  his  character  in  issue  9    far  as  may  respe  -  an  1  qu  ili  i   i- 

tions  for  the  office."  Although  at  the  period  of  pronouncing  judgment  in  this  case  the 
truth  could  not  be  given  in  evidence,  in  M  issachusetts,  fn  justification  of  a  libel  crimi- 
nally prosecuted,  the  C.  J.  held  that  "  publications  of  the  truth  on  this  subject,  with  the 
honest  intention  of  informing  the  people,  are  not  libellous,  for  it  would  be  unreasonable 
to  conclude  that  the  publication  of  truth,  which  it  is  the  interest  of  the  people  to  know, 
should  be  an  o Hence  against  those  laws."  In  Onslow  v.  Home,  2  Wm.  Black. 
which  was  an  action  for  words  spoken  of  a  member  of  Parliament,  at  a  public  county 
meeting,  bold  for  the  purpose  of  considering  of  measures  to  be  taken  in  Bupport  of  the 
right  of  election,  it  was  moved,  in  arrest  of  judgment,  that  if  the  v  totionable 

in  themselves,  the  occasion  of  speaking  them  would  excuse  the  defendant,  they  having 
been  uttered  at  a  public  county  meeting  where  freedom  of  debate  is  necessary.  The 
Court  of  King's  I  the  importance  of  thi  ,  but  declined  ex- 

pressing i    upon   it.     Chief  Justice  DeGui  i  L,  "  As  we    think  the 

words  in  the  last  count  (the  words  in  question)  are  not  actionable,  either  in  themselves 
or  .is  applied  to  a  member  of  Parliament,  we  shall  give  no  opinion  how  far  tuch  an  oc- 
casion as  (he  meeting  stated  in  the  declaration  would  or  would  not  justify  speaking  such 
words  as  would  otherwise  be  clearly  actum, 

The  question  whether  a  communication  in  respect  to  B  candidal 
was  expressly  nisei  in  Duncombe  v.  Daniel,  'ayne,  218,  decided  in  1837. 

That  was  ;,„  action  for  a  libel;  the  plaintiff  declared  upon  two  letters  written  by  the  de- 
fendant and  published  in  the  Morning  Post  a  ■-.  ■■■  .  he  plaintiff,  who 
was  a  candidate  for  the  representation  of  the  borough  of  PifM  '>ury,  in  the  British  Parlia- 
ment. The  defendant  was  an  elector  of  the  borough.  The  1,  Iters  contained  two  charges: 
1.  Imposition  and  fraud  upon  the  Vice  Chancellor  in  obtaining  an  injunction;  and  2. 
dishonorable  and  dishonest  conduct  relative  to  a  money  transaction,  and  called  upon  the 
plaintiff  for  an  explanation  at  the  hustings.     Sir  W.  Follett,  for  the  defendant,  submit- 


195  CIVIL  REMEDY : 

Loss  of  marriage  seems  to  have  been  always  considered  as  a 
temporal  damage  (s),  although  the  words  themselves  have  imputed 
matter  of  mere  spiritual  cognizance. 

(»)  Davis  v.  Gardiner,  4  Co.  1G.  Roph.  Cro.  Car.  155.  Case  of  Sir  C.  Gerald's 
36.     1  Roll.  Rep.  34,  35,   109.     Mo.  -'.00      bailiff,  Bull.  N.  P.  7. 


ted  that,  as  the  plaintiff  was  a  candidate  for  the  representation  of  the  borough,  and  the 
defendant  an  elector,  the  latter  was  justified  in  stating  to  the  other  electors  the  imputa- 
tions complained  of,  if  he  did  so  bona  fide  and  without  malice,  believing  the  imputations 
to  be  true.  Lord  Denman,  C.  J.,  charged  the  jury  that  it  appeared  to  him  that  the 
occasion  did  not  justify  the  publication,  and  the  plaintiff  had  a  verdict.  At  the 
next  term,  application  was  made  for  a  new  trial  on  the  ground  (inter  alia)  that 
it  was  justifiable  for  an  elector  bona  fide  to  communicate  to  the  constituency  any 
matter  respecting  a  candidate  which  he  believed  to  be  true  and  material  to  the 
election.  The  principle  was  conceded  by  the  court  to  be  correct,  but  was  held  in- 
applicable because  the  communication  had  not  been  confined  to  the  constituency  of  the 
plaintiff,  but  had  been  published  in  the  Morning  Post.  When  Sir  W.  Follett  stated  as 
above,  the  ground  of  his  application  for  a  new  trial,  Coleridge,  remarked,  "  You  must 
go  farther  than  that,  and  make  out  that  the  elector  is  entitled  to  publish  it  to  all 
the  world.  This  publication  was  in  a  newspaper."  Lord  Denman,  C.  J.,  also  after 
hearing  counsel,  observed,  "  However  large  the  privilege  of  electors  may  be,  it  is  ex- 
travagant to  suppose  that  it  can  justify  the  publication  to  all  the  world  of  facts  injurious 
to  a  person  who  happens  to  stand  in  the  situation  of  a  candidate." 

On  the  other  hand,  when  at  a  very  early  day  it  was  said  of  a  candidate  for  a  public 
office,  "he  is  an  ignorant  man  and  not  fit  for  the  place,"  the  judges  in  England,  after 
the  case  had  been  twice  argued,  seemed  inclined  to  the  opinion  that  the  words  were  ac- 
tionable, but  no  judgment  was  given,  Saunderson  v.  Ruddes,  March's  R.  146,  pi.  217, 
decided  in  17  Car.  I.  Anno  Domini  1642.  The  other  case  cited  in  the  text,  viz.  1  Buls. 
138,  is  that  of  Simpso  i  v.  Brooks,  decided  in  1612.  It  was  an  action  for  saying  of  the 
plaintiff,  "  he  is  not  worthy  to  bear  office  in  such  a  place,  for  he  keeps  a  bawdy  house  in 
London."  The  jury  bund  for  the  plaintiff,  and  the  defendant  moved  in  arrest  of  judg- 
ment, that  the  v.crl  v.  i  re  not  perse  actionable.  It  is  not  stated  in  Bulstrodc  that  the 
plaintiff  was,  at  tlu  timeof  the  speaking  of  the  words,  a  candidate  for  office ;  but,  ad- 
mitting him  to  have  been  a  candidate,  the  question  whether  the  defendant  was  liable  in 
an  action  for  damages,  if  a  constituent  of  the  plaintiff,  and  the  words  were  spoken  in 
»ocd  faith,  in  the  belief  of  their  truth,  and  without  malice,  could  not  have  arisen  on  a 
motion  in  arrest.  The  next  case  on  this  subject,  in  England,  in  point  of  time,  is  Har- 
wood  v.  Asil  i,  i  Bos.  &  Pul.  47,  decided  in  1804,  which  was  brought  into  the  Exchequer 
Cha.Tiber  on  writ  of  error  from  the  King's  Bench.  Astley  declared  that  he  was  a  candi- 
date for  eh  ne  of  the  knights  of  the  shire,  to  represent  the  county  of  Norfolk  in 
Parliament,  ....id  that  with  the  intent  to  prejudice  him  in  the  esteem  of  the  freeholders 
of  the  county  having  a  right  to  vote.  Harwood  falsely  and  maliciously  charged  him 
with  being  a  murderer,  and  with-'  ing  murdered  his  own  father.  The  defendant 
pleaded  not  guilhj  1  the  plaintifi  jlned  a  verdict  for  £2000  damages.  The  defend- 
ant sued  out  a  wi  U  of  irror,  ".nd  the  j  augment  was  affirmed.  Sir  James  Mansfield,  C.  J. 
who  delivered  the  opinion  of  the  court,  held  that  the  words  were  actionable  in  them- 
selves, and  being  so,  it  as  immaterial  whether  they  were  spoken  of  a  candidate  for 
office  or  not;  that  it  was  impossible  for  the  jury  conscientiously  to  have  found  a  verdict 
for  the  plaintiff  unless  they  believed  that  the  defendant  was  guilty  of  maliciously  speak- 


SPECIAL  DAMAGE.  195 

In  Malheivs  v.  Crass  (l),  which  was  an  action  for  words,  occa- 
sioning loss  of  marriage ;  afteryerdict  for  the  plaintiff,  it  was  urged 
on  motion  in  arrest  of  judgment,  that  this  wae  the  first  case  where 
loss  of  marriage  Mas  ever  laid  for  words  spoken  of  a  man.  and  there- 
fore was  not  warranted  by  Ann  Davis'j  >< ).  But  the  court 
conceived  it  to  be  immaterial,  in  case  of  loss  of  marriage,  whether 
the  plaintiff  be  a  man  or  a  woman. 

In  order  to  support  an  action  grounded  opon  the  lose  of  marriage 
it  is  necessary  for  the  plaintiff  to  allege  and  prove  that  a  marriage 
with  some  specific  person  (x)  was  in  contemplation,  and  was  hinder- 
ed by  the  speaking  of  the  words. 

(0   Cro.  Jac.  323.  (r)    1  Roll.  SC.  1.  16.     1  Com.  Dig.  tit. 

(m)  4  Co.  11.  vide  infra.  Defam.  D.  30. 


ing  the  words.  He  added,  "  It  seems  to  be  supposed  that  the  situation  of  a  candidate 
for  parliament  is  such  as  to  make  it  lawful  for  any  man  to  say  any  thing  of  him."  To 
that  proposition,  he  said  «•  I  cannot  assent;  nor  is  it  to  be  collected  from  any  of  the 
cases  which  have  been  cited.  It  would  be  a  strange  doctrine  indeed,  that  when  a  man 
stands  for  the  most  honorable  situation  in  the  country,  any  person  may  accuse  him  with 
any  imaginable  crime  with  impunity."  This  case  at  first  blush,  would  seem  to  dispose 
of  the  question,  but  on  looking  at  it  more  closely,  it  will  be  found  not  to  do  so.  As  the 
case  came  before  the  court  on  writ  of  error,  no  other  judgment  than  that  of  affirmance 
could  possibly  be  rendered.  The  charge  against  the  plaintiff  was  truly  of  a  must  atro- 
cious nature;  yet  if  made  in  good,  faith,  believing  it  to  be  true,  the  defendant  had  a 
right  to  make  it,  and  to  apprise  his  fellow  electors  of  the  character  of  the  plaintiff  as 
he  believed  it  to  be,  and  the  law  would  presume  him  to  be  innocent  of  all  wrong,  until 
such  presumption  was  rebutted  by  proof  of  express  malice  ;  and  we  are  bound  to  pre- 
sume that  such  proof  was  given,  or  the  jury,  as  the  C.  J.  remarked,  would  not  hive 
found  that  the  words  were  muliciously  spoken.  This  case  therefore,  as  before  remarked, 
settles  nothing. 

The  cases  upon  this  subject  which  have  arisen  in  the  Supreme  Court  of  the  State  of 
New-York  and  Lewisx.  Few,  5  Johns.  R.  1;  Root  v.  />'■  ?,  7  Co  wen,  B17;  /'■  well  v. 
Dubois,  17  Wendell,  '•':;,  Cramer  v.  Riggt,  17  Id.  209;  and  Tamil  v.  Dollouay,  17 
Id.  426,  and  26  M.  888,  B.  C. 

Leu-is  v.  Few  was  an  action  for  an  alleged  libel  contained  in  "  An  Address  to  tho 
electors  of  the  State  of  New-York,"  on  the  occasion  of  a  general  election  when 
the  plaintiff  was  a  candidate  for  re-electkn  to  the  ifficc  of  Governor.  It  wafl  in- 
sisted by  the  counsel  for  the  defendant,  that  re  of  the  pabli 
and  the  right  of  the  citizen  freely  to  disooSfl  the  oharaoter,  princ  nduct  of  a 
candidate  for  office,  the  plaintiff  wis  not  entitled  to  sustain  the  action,  unless  he  proved 
express  malice;  and  that  having  tailed  to  do  so,  he  v  iVOT.  The 
court  denied  this  position,  and  held  that  the  malice  implied  fn  DO  the  falsity  of  the  publi- 
cation, was  sufi&cient  to  sustain  the  action;  thus  virtually  holding  that  a  publication  of 
this  kind  was  not  entitled  to  be  considered  as  a  privileged  communication.  The  same 
doctrine  was  recognized  in  Root  v.  King,  7  Cowen,  G17.  In  the  three  other  cases  aboTe 
mentioned,  there  is  co  allusion  in  the  opinions  pronounced ,  to  the  doctrine  of  privileged 
communications.     Thus  stand  the  cases  upon  this  question. 


195  CIVIL  REMEDY: 

[  *196  ]  *The  necessity  of  proving  a  specific  loss,  falls  with  pe- 
culiar hardship  upon  unmarried  females,  who  arc  thereby 
frequently  debarred  from  maintaining  actions  for  imputations  most 
unfounded  and  injurious.  In  no  other  case  can  it  be  more  fairly  pre- 
sumed that  the  scandal,  if  believed,  will  produce  detriment,  than 
where  an  unmarried  female  is  charged  with  incontinence  :  and  there- 
fore, in  no  other  case- is  the  plaintiff  better  entitled,  iti  reason  and 
good  sense,  to' the  benefit  of  that  presumption,  in  order  to  obtain  a 
remedy  for  the  scandal,  and,  which  is  of  infinitely  more  importance, 
an  opportunity  of  fairly  meeting  and  rebutting  the  calumny. 

No  species  of  slander  can  be  more  cruel  and  malicious  in  its  ori- 
gin, none  more  pernicious  in  its  consequences :  yet,  unless  some  spe- 
cific damage  can  be  proved,  or  the  charge  be  committed  to  writing, 
the  suffering  party,  whose  peace  of  mind  is  destroyed,  and  prospects 
ruined,  has  no  appeal  but  to  courts,  whose  powers,  limited  as  they 
are,  to  the  infliction  of  penance  for  the  spiritual  benefit  of  the  wrong- 
doer, can  administer  no  substantial  relief  or  protection  to  the  party 
wronged. 

Yet  it  is  this  very  jurisdiction  of  the  ecclesiastical  courts,  which 
has  frequently  been  assigned  as  a  reason  (though  surely  an  inade- 
quate one)  why  the  temporal  courts  should  not  interfere 'to  give 'a 

remedy  in  damages. 
[  *197  "  *It  has  been  said  that  were  the  courts  of  law  in  such 
cases  to  entertain  an  action,  it  would  be  productive  of 
hardship  to  the  defendant,  who  would  be  twice  punished  for  the  same 
offence,  by  an  award  of  damages  in  the  temporal,  and  by  the  inflic- 
tion of  penance  in  the  spiritual  court. 

This  mode  of  reasoning  is  evidently  fallacious:  if  a  man  contrive 
by  one  and  the  same  act,  to  offend  against  religion,  and  to  do  a  se- 
rious temporal  injury  to  his  neighbor,  though  the  act  be  one  and 
the  same,  it  unites  and  comprehends  offences  wholly  distinct,  and  it 
is  absurd  to  say  that  the  spiritual  offence  shall  protect  the  offender 
from  consequences  merely  temporal,  and  that,  by  rendering  himself 
liable  to  a  trifling  penance,  he  shall  rid  himself  of  a  load  of  tempo- 
ral responsibility. 

The  objection,  too,  falsely  assumes,  that  the  payment  of  damages 
is  in  the  nature  of  punishment ;  by  the  law  of  England,  the  amount 
of  damages  is  in  all  cases  to  be  measured  by  the  temporal  prejudice 
sustained  by  the  plaintiff,  and  they  are  awarded  without  any  regard 
to  the  penal  correction  of  the  defendant,  or  the  reformation  of  his 
manners ;  the  reason,  at  all  events,  is  a  strange  one  to  have  weighed 


SPECIAL   DAMAGE.  197 

in  a  court  of  law,  whose  records  abound  with  cases,  which  prove 
that  for  the  same  act  a  person  may  be  both  civilly  and  criminally 
responsible. 

*Such,  however,  is  the  law  upon  this  point  though  [  *198  ] 
formerly  much  doubt  was  entertained  upon  it. 

In  Ann  Davit's  case,  (y),  the  plaintiff  declared  that  Bhe  w 
virgin  of  good  fame,  &c.  and  that  one  Anthony  ESlcock,  citizen  of 
London,  of  the  substance  of  £3000,  desired  her  for  his  wife,  and 
had  thereon  conferred  with  John  Davis  her  father,  and  was  ready  to 
conclude  it,  when  the  defendant,  knowing  the  premises,  but  intend- 
ing to  injure  the  said  Ann,  and  to  obstruct  the  Baid  Anthony's  pro- 
ceedings, published  of  the  said  Ann  these  words,  "1  know  Davis's 
daughter  well,  she  dwelt  in  Chcapside,  and  then'  was  a  grocer  there 
that  did  get  her  with  child  ;"  by  which  the  said  Anthony  refused  to 
take  her  to  wife. 

After  verdict  for  the  plain  till",  it  was  moved  in  arrest  of  judg- 
ment, that  the  words  were  not  actionable,  because  the  defamation 
was  spiritual.  But  it  was  resolved  by  the  whole  court,  that  the  ac- 
tion was  maintainable  : 

1.  Because,  if  a  woman  had  a  bastard,  she  was  punishable  by 
the  statute  of  18  Eliz.  c.  3. 

2.  That  if  the  defendant  had  charged  barely  with  incontinence, 
the  action  would  have  been  maintainable,  since  the  ground 

of  action  *was  temporal,  namely,  that  she  was  defeated  |  *100  ] 
of  her  marriage. 

But  in  subsequent  cases,  (2)  the  first  of  the  reasons  given  in 
Ann  Davis's  case  was  denied  to  be  law;  and  it  was  said,  that  the 
sole  reason  on  which  the  judgment  rested  was  the  loss  of  marriage. 

In  Baldwin  and  his  wife  v.  Flower  (a),  it  was  held  that  an  ac- 
tion lay  for  calling  the  wife  "  whore,"  because,  by  such  means,  she 
might  lose  the  communication  and  society  of  her  neighbors. 

In  Medhurst  v.  Balsam  (6),  the  plaintiff  declared  Bhe  had 
eral  suitors  to  marry  her;  and  that  the  defendant  Baid  of  her, 
"  She  is  with  child  and  hath  taken  physic  for  it;"  by  which  she 
became  in  disgrace,  and  Losl  the  society  of  her  neighbors.  And  it 
was  adjudged  that  the  action  lay,  though  uo  Loss  of  marriage  was 
alleged. 


(!/)  4  Co.  16.  (a)  3  Mod.  120. 

(z)  1  Lev.  261.     Sid.  397.     Vent.  4.  {b)  1  Vin.  Ab.  393.  pi.  7.     Sid.  397. 

Vol.  I.  20 


199  CIVIL  REMEDY: 

This  doctrine  has,  however,  been  overruled  in  a  variety  of  ca 

ses  (c). 

In  Og-den  v.  Turner  (d),  Holt,  C.  J.  observed,  "  To 
[  *200  ]    say  of  a  young  woman  that  she  *had  a  bastard,  is  a  very 
great  scandal,  and  for  which,  if  I  could,  I  would  encour- 
age an  action  ;  but  it  is  not  actionable,  because  it  is  a  spiritual  de- 
famation, punishable  in  the  spiritual  court." 

In  Byron  v.  Ernes  (e"),  a  young  unmarried  woman  had  been 
charged  with  gross  incontinency.  After  a  verdict  for  the  plaintiff, 
it  was  moved,  in  arrest  of  judgment,  that  the  words  were  not  action- 
able, because  they  were  of  spiritual  cognizance,  and  that  no  tempo- 
ral loss  had  accrued  :  that  to  say,  "  a  woman  has  a  bastard,"  was 
never  actionable  before  the  statute  for  the  provision  of  bastard  chil- 
dren ;  and  that,  since  the  statute,  it  had  never  been  held  actionable 
but  where  the  party  had  been  brought  within  the  penalty  of  the 
statute,  which  is  only  where  the  bastard  becomes  chargeable  to  the 
parish  ;  that  these  words  were  most  scandalous  of  a  young  woman  ; 
and  that,  had  it  been  res  nova,  perhaps  an  action  would  have  lain, 
but  that  there'were  many  authorities  to  the  contrary.  That  it  was 
a  crime  of  which  the  spiritual  court  had  conusance,  and  could  cen- 
sure ;'  and  that  it  was  not  reasonable  that  the  party  should  be  liable 
to  ecclesiastical  censure  and  an  action  too,  on  which  account  Ann 
Davis's  case  had  been  often  shaken,  and  judgment  was  given  for 
the  defendant. 

For  similar  words  in  Creavesv.  Blanchet  (/),judg- 
[  *201  ]  ment,  *after  verdict  for  the  plaintiff,  was  arrested  ;  the 
court  observing,  that  they  could  not  overthrow  so  many 
authorities,  and  that  the  reason  was,  that  fornication  was  a  spiritual 
offence,  and  that  no  action  lay  at  Common  Law  for  what  the  Com- 
mon Law  took  no  notice  of. 

In  the  above  case  (g-)  also,  the  court  said,  that  if  it  were  res 
nova,  it  were  reasonable  to  make  the  words  actionable,  for  no  great- 
er misfortune  can  befal  a  young  woman,  whose  well  doing  depends 
upon  her  having  a  good  husband,  that  to  be  reputed  a  whore  ;  but 
the  authorities  are  too  many  and  great  to  run  counter  to  them ;  the 
reason  of  them  is,  that  fornication  is  a  spiritual  offence,  not  punish- 
able at  Common  Law,  and  an  action  shall  not  lie  for  charging  one 
with  an  offence  of  which  the  law  takes  no  notice,  without  special 

(c)  1   Lev.  261.     2   Keb.  451.     1  Sid.         (e)  12  Mod.  106.     3  Will.  3 
396.     Ld.  Ray.  1004.  (/  )  Salk.  695.     6  Mod.  148. 

(d)  Holt.  B.  40.  ($0  6  Mod.  148. 


SPECIAL  DAMAGE.  201 

damages  ;  and  if  Ann  Davis's  case  had  been  pursued, as  it  had  I n 

contradicted,  it  would  do. 

From  these  and  many  similar  authorities,  it  appears,  that  the 
judges  have  long  ago  ferl  themselves  overpowered  with  the  number 
of  tin*  decisions  upon  this  point,  constantly  regretting  thai  they  were 
no  longer  at  Liberty  to  determine  differently. 

'Before  this  subject  is  dismissed,  it  may  be  proper  to 
remark,  that  in  the  old  decisions  upon  this  point,  the  on-    |    *202    ] 
ly  question  contemplated  seems  to  have  been,  whether 
the  words  of  incontinency  <  h  )  were  actionable,  as  imputing  a  crime ; 
and  it  does  not  appear  to  have  been  much  considered,  whether  they 
were  not  actionable  on  the  broad  plain  ground  that  they  immedi 
ly  tend  to  hinder  the  plaintiff's  advancement  in  life  by  an  advanta- 
geous marriage. 

It  may,  perhaps,  lie  too  late  to  contend,  thai  the  plaintiff  i- 
titlcd  to  recover  upon  this  general  principle;  the  courts,  however, 
have  manifested  a  desire  to  administer  every  relief  in  their  power  to 
plaintiffs  of  this  description,  so  that  the  most  trifling  loss  sustained 
in  consequence  of  such  slander,  as  of  a  dinner,  or  other  hospitable 
but  gratuitous  entertainment  (i),  will  entitle  the  party  to  her  ac- 
tion [1]. 

And,  in  general,  wherever  a  person  is  prevented  by  the  slander 
from  receiving  that  which  would  otherwise  have  been  conferred  upon 
him,  though  gratuitously,  the  special  damage  will  support  an  action. 
As  where,  in  consequence  of  a  charge  of  incontinence, 
a  dissenting  preacher  *was  prevented  from  preaching  (/r)  *203  ] 
and  receiving  voluntary  donations. 

(h)    See  the   first     resolution   in    Ann     T.uiu.   89. 
Davis's  rase,  i  Coke,  10.  (I,-)   Hartley  v.   Herring,   B  T.   B 

(t)  Moore    v.     Meagher,   in  Error,    1 

[1]  The  refusal  of  civil  treatment  at   :i   public  inn  has  been  held  sufficient  \ 
special  damage,  OlmtlejL  v.  Milter,  1    Wendell  506  ;  Loss  of  health  an  I  t  in- 

capacity to  attend   to  business,  was   held  on  demurrer  a  sufficient   averment 
damage,  Bradt  v.  Towshj,  13  Wendell  268  ;    Proof  that   the  plaintiff  was  ttu 
from  the  house  of  her  uncle,  and  charged  not  to  return  there  until  she  had   cleared  up 
her  character,  was  held  sufficient  to  Bustaiu  an  aotion,    William*  \.  Hill,  49  Wendell 
305.    So  an  allegation  that  individuals  who  had  been    in  the  f  providing  fuel, 

clothing,  and  provisions  for  the  ]'laiiititr,  refused  to  do  so  any  longer   in 
the  speaking  of  the  slanderous  words,  complained  of,  was  held  sufficient  evidence  of  spe- 
cial damage,  Beach  v.  Ranney,  2  Hill,  809.     In  the  ' 

are  reviewed  ;  and  it  is  said  they  all  proceed  upon  the  assumption  that  the  plaintiff  had 
sustained  pecuniary  loss  in  consequence  of  the  slanderous  words,  and  that  without  such 
assumption  the  decisions  could  not  be  sustained. 


203  CIVIL  REMEDY: 

So,  the  loss  of  particular  customers  by  a  tradesman  is  an  action- 
able special  damage  (/)• 

And  it  is  immaterial  in  such  case,  whether  the  words  relate  to  his 
business  or  otherwise  (;»). 

A  mere  apprehension  of  ill  consequences  cannot  constitute  a  spe- 
cial damage  ;  so  that  it  has  been  held  to  be  insufficient  for  the 
plaintiff  to  allege,  that  in  consequence  of  the  words,  discord  hap- 
pened between  him  and  his  wife  (n),  and  he  was  in  danger  of  a 
divorce. 

Or,  to  allege  that  the  plaintiff  (o)  was  exposed  to  her  parents' 
displeasure,  and  in  danger  of  being  put  out  of  their  house. 

Or,  to  say  he  lost  the  affection  of  his  mother  (j?),  who  intended 
him  £100. 

2.  How  must  the  special  damage  be  connected  ivith  the  slander, 

to  constitute  a  ground  of  action  ? 

[  *204  ]        It  was  said  by  Holt,  C.  J.  that  "  At  Common  *Law, 

if  a  man  do  an  unlawful  act,  he  shall  be  answerable  for 

the  consequences,  especially  where  the  act  is  done  with  the  intent 

that  consequential  damage  shall  follow  (<?)." 

But  it  is  not  essential  that  the  damage  should  be  the  necessary 
and  inevitable  consequence  of  the  slanderous  words  ;  it  is  sufficient, 
for  instance,  if  they  impose  upon  the  plaintiff  a  violent  and  urgent 
motive  for  incurring  expense. 

In  the  case  of  Peake  v.  Oldham  (r),  Lord  Mansfield  expressed 
an  opinion,  that  the  expenses  of  an  inquest  incurred  by  a  plaintiff, 
who  had  been  wrongfully  accused  of  murder,  might  be  considered 
as  special  damage. 

The  rule  appears  to  be,  that  the  damage  must  be  the  mere,  nat- 
ural, and  immediate  consequence  of  the  vjrongful  act. 

The  defendant  asserted,  that  the  plaintiff  had  cut  his  master's 
cordage  (s)  upon  which  the  master  discharged  him,  though  he  was 
under  an  engagement  to  employ  him  for  a  term.  It  was  held  by 
the  court,  that  the  discharge  was  not  a  ground  of  action ;  that  the 
special  damage  must  be  the  natural  and  legal  consequence  of  the 
words  spoken  ;  and  that  the  defendant  was  no  more  an- 
[  *205  ]  '  swerable  for  the  discharge,  than  if,  in  consequence  *of 

(l)  Barron  v.   Gibson,  Ld.    Ray.  831.  (p)  Car.  1.     1  Com.    Dig.   tit.    Defam. 

Str.  566.     Bull.  N.  P.  7.  1.  Lev.  140.  D.  30. 

(m)  1  Lev.  140.  (q)  Ld.  Ray.  480. 

(n)  1  Roll.  34.  (r)  Cowp.  277. 

(o)  Barnes  v.  Bruddell,  1  Lev.  261.  (s)    Vicars  v.    Wilcocks,  8  East.  1. 


SPECIAL  DAMAGE.  205 

the  words,  other  persons  hud  assaulted  and  thrown  the  plaintiff 
into  a  horse-pond. 

The  damage  must  be  attributable  wholly  to  the  words;  so  that, 
where  the  reason  of  a  person's  refusing  to  employ  the  plaintiff  WBS 
founded,  partly  on  the  defendant's  word-,  and  pari///  on  the  circum- 
stance of  his  having  been  previously  discharged  by  another  master, 
it  was  held  that  no  action  was  maintainable  1 1  >. 

And  it  has  been  said  that  (?/),  where,  in  consequence  of  the 
words,  a  third  person  has  refused  to  perforin  a  contract  previously 
made  with  the  plaintiff,  and  which  he  was  in  law  bound  to  perform, 
uo  action  is  maintainable  ;  for  the  plaintiff,  in  such  case,  is  ■  t, titled 
to  a  compensation  for  the  non-performance  of  the  contract  ;  and. 
were  he  allowed  to  maintain  his  action  for  the  slander,  he  would 
receive  a  double  compensation  for  the  same  injury  :  first,  against  tin- 
author  of  the  slander  ;  and  secondly,  against  the  person  who  had 
refused  to  perform  his  agreement. 

This  doctrine  would,  in  many  instances,  be  productive  of  hard- 
ship to  the  plaintiff:  he  may  resort,  it  is  true,  to  his  legal  remedy 
against  the  person  refusing  to  perform  his  contract ;  but 
this  can  scarcely  be  considered  as  a  full  and  *real  com-  *206  ] 
pensation  to  the  party,  who,  by  the  defendant's  wrong- 
ful act,  has  had  a  benefit  in  possession  wrested  from  him,  and  con- 
verted into  a  bare  legal  right  (.r). 

(t)  8  East.  1.  imputation  of  murder,  was  special  damage; 
(u)  2  Bos.  &  Pull.  284.  8  East.  1.  yet  there  the  plaintiff  wis  under  do  legal 
(z)  Besides  this,  he  may  have  been  put  obligation  whatsoever  to  incur  such  expen- 
to  great  trouble,  and  to  some  expense,  in  ses.  If  one  man,  by  a  wrongful  and  uu- 
respect  of  which  he  could  not  obtain  any  lieioUR  act,  is  the  immediate  cause  of  anoth- 
compensation,  in  an  action  for  the  breach  er  man's  committing  another  wrongful  act, 
of  contract.  It  is  notorious,  that  no  plain-  to  the  injury  of  the  s  ime  party,  there  seems 
tiff,  in  such  an  action,  recovers  the  whole  to  be  no  objection,  on  the  I 
of  his  costs.  If  it  be  said,  that  he  does,  in  policy  or  morality,  to  his  reoovering 
legal  consideration,  recover  his  full  costs,  it  faction  from  each,  proportioned  to  the  ex- 
may  be  replied,  that  in  Buoh  actions  it  is  by  tent  of  the  d  im  tg                    by  e  i  ih  :  he 

no  means  essential  that  the  special  dam   ge,     does   not,  either  in  point  of  law  or  (act,  '".•- 

which  is  necessary  to  support  the  action,  cover  a  double  remedy  for  the  same  injury. 

should  amount  to  strict  legal  damage.     The  The  dam  tge  imme  liatelj                 I  by  the 

loss  even  of  a  gratuitous  donation,  if  it  lias  slander,  that  IB,  the  loss  of  character  and 

been    intercepted    by  means  of  the  defen-  the  loss  of  the  immediate  benefit  of  1 

dant's  slander,  is  sufficient  to  support  the  tract,  '""'  ''"'  tr  »ohle  an  1  extra  ei 

action;    and  in  Peake   v.  Oldham,  Cowp.  which  he  must  be  put  to  obtain  oompensa- 

277,  Lord  Mansfield  held,  that  the  expenses  tion  for  the  breach  of  contract,  is  distin- 

of  an  inquest,  which  had  been  incurred  by  guishable   from    the  damage  arising  from 

the  plaintiff  in  consequence  of  a  slanderous  the  breach  of  contract. 

20* 


206  CIVIL  REMEDY  : 

[  *207  ]  *The  defendant  (jj)  having  libelled  a  performer  at  a 
place  of  public  entertainment,  she  refused  to  sing,  and 
the  proprietor  brought  his  action  on  the  ground  of  special  damage, 
alleging  that  his  oratorios  had,  in  consequence  of  her  absence,  been 
more  thinly  attended.  But  it  was  held,  by  the  learned  judge  who 
presided  at  the  trial,  that  the  injury  was  too  remote ;  that  if  the 
performer  was  really  injured,  an  action  lay  at  her  suit ;  and  that  it 
did  not  appear  but  that  her  refusual  to  perform  arose  from  caprice 

or  indolence. 
[  *208  ]  *The  plaintiff  having  once  recovered  damages  in  an 
action  for  words,  cannot  afterwards  recover  an  ulterior 
compensation  for  any  loss  subsequently  resulting  from  the  same 
words  (z):  Where  the  plaintiff  (a),  knowing  the  defendant's  sen- 
timents, procures  the  publication  of  that  from  which  damage  results, 
he  will  not  afterwards  be  at  liberty  to  ascribe  his  loss  to  the  defend- 
ant's act,  but  be  considered  as  the  voluntary  author  of  the  mischief 
which  follows  [1] 

If   the   objection   were  well  founded,  it  special  damage  has  consisted  of  loss  of  mar- 
would  extend  to  the  exclusion  of  an  action  riage,  where  the  party  who,  by  reason  of 
to  be  brought  by  any  servant  who  was  un-  the  slander,  broke  off  the  marriage,  wa9 
der    contract    to  serve,  though  the  words  under  a  promise  to  marry.     Qu.;  therefore 
were  in  themselves  actionable;  for  if  anac-  ^ide  Morris  v.  Langdale,  2  B.  &  P.  284 
tual  dismissal  from  service  would  not  be  an  See  also  the  case  of  Newman  v.  Zachary, 
actionable  damage  by  reason  of  the  contract,  Aleyn,  3,  it  was  held,  that  case  would  lie 
there  could  be  no  sufficient  presumption  of  for  falsely  representing  to  the  bailiff  of  a 
damage  to  support  the  action.     It  would  be  manor,  that  a  sheep  of  the  plaintiff's  was 
absurd  to  sustain  an  action  upon  a  mere  an  astray,  in  consequence  of  which  it  was 
presumption  of   evil  consequences,  and  to  wrongfully  seized.     And  see  Ld.  Holt's  ob- 
deny  it  where  the  very  consequences  had  servations,  ib. 
resulted.     It  is  also   observable,  that   the        (</)  l  EsP-  R-  48- 
objection  is  consistent  with  all  the  cases,         (z)  Bull<  N-  p-  '• 
many  of  which  have   occurred  where  the        («)  3  B.  &  P.  592.     5  Esp.  R.  15. 


[1]  In  addition  to  the  cases  cited  under  note  (a)  see  TVeatherston  v.  Hawkins,  1  T. 
R.  110,  per  Buller  J.  Howard  v.  Thompson,  21  Wendell  319  ;  Bradley  v.  Heath,  12 
Pickering  163  ;  Wilmarth  v.  Mountford,4  Wash.  C.  C.  R.  79  ;  Lamed  v.  Buffinton, 
3  Mass.  R  553.  In  Warr  v.  Jolly,  6  Carr.  &  Payne  497,  the  defendant  in  answer 
to  the  questions  put  by  the  plaintiff,  (a  clergyman,)  told  him  that  he  had  been  cau- 
tioned against  him  as  a  man  of  intemperate  habits,  it  was  held  that  for  words  thus 
spoken  by  the  defendant,  an  action  would  not  lie.  AUerson,  B.  in  summing  up,  told 
the  jury,  "  the  words  are  privileged  by  the  occasion,  unless  you  are  satisfied  that  they 
were  not  spoken  bona  fide,  and  that  the  defendant  was  actuated  by  malice  ;  and  it 
lies  on  the  plaintiff  to  show  that  the  defendant  was  actuated  by  malicious  motives." 


CHAPTER    VIII. 


rulil.K'ATION    ANH    IMKNTION. 

♦Having  thus  considered  the  nature,  quality,  and  con-    [   '209    ] 
sequences  of  the  matter  communicated,  the  next  question, 
according  to  the  elementary  division  already  announced,  is  as  to  the 
act  of  communication  by  the  defendant,  and  the  inflation  with  which 
he  (a)  made  it. 

It  is  of  course,  essential  to  the  production  of  any  loss  or  damage 
to  the  plaintiff,  that  the  slanderous  matter  should  have  been  com- 
municated or  published  to  some  third  person  ;  in  this  respect,  civil 
differs  from  criminal  liability,  which  as  will  be  seen,  may  be  con- 
summated by  a  publication  to  the  party  detained  without  more  ;  but, 
with  the  exception  of  the  case  of  libel,  the  means  of  publication  arc 
indifferent,  and  do  not  affect  the  right  of  action. 

*In  the  case  of  libel,  it  is  sufficient  if  the  defendant  [  *210  ] 
be  the  partial  instrument  of  communication,  either  by 
assisting  in  its  original  construction  or  subsequent  promulgation  : 
if  one  party  were  to  dictate,  a  second  to  write,  and  a  third  to  dis- 
tribute written  or  printed  slander,  the  plaintiff  would  be  left  with- 
out remedy,  unless  each  of  these  parties  were  to  be  considered  as 
responsible  for  the  whole  effect  produced. 

The  subject  of  publication  will  hereafter  be  discussed  as  a  matter 
of  evidence  ;  assuming  therefore.  \or  the  present,  that  some  publica- 
tion (b)  has  been  made  to  a  third  person,  with  the  defendant's 
knowledge,  and  through  his  procurement;  the  next  point  for  con- 
sideration is — 

The  intention  with  which  he  published. 

The  intention  of  the  publisher  may  be  regarded  either  independ- 

(n)  Supra,  p.  5.  624.     Eluard's   and    ll'allon's   case,    4 

(6)  See   Baldwin   v.  Elphi>istone,    Bl.     Lev.  240.  Hi  I 
Rep.   1037.     Phillips  v.   Jarwen,  2  Esp. 


210  CIVIL  REMEDY— INTENTION. 

ently  of  the  occasion  of  publishing  and  the  collateral  circumstances, 
or  in  connection  with  them. 

First,  independently  of  the  occasion  and  circumstances. 

It  seems  to  be  clear,  as  well  upon  legal  principles  as  on  those  of 
morality  and  policy,  that  where  the  wilful  act  of  publishing  defama- 
tory matter  derives  no  excuse  or  qualification  from  col- 
[  *211  ]  lateral  *circumstance,  none  can  arise  from  a  considera- 
tion that  the  author  of  the  mischief  was  not  actuated  by 
any  deliberate  and  malicious  intention  to  injure,  beyond  that  which 
is  necessarily  to  be  inferred  from  the  very  act  itself.  For  if  a  man 
wilfully  does  an  act  likely  to  occasion  mischief  to  another,  and  to 
subject  him  to  disgrace,  obloquy,  and  temporal  damage,  he  must,  in 
point  of  law  as  well  as  morals,  be  presumed  to  have  contemplated 
and  intended  the  evil  consequences  which  were  likely  to  ensue. 

To  run  the  risk  of  effecting  a  serious  injury  to  another,  even  from 
want  of  due  care  and  attention,  is  necessarily  an  offence  against  the 
first  principles  of  morality  ;  and  even  were  it  otherwise,  it  would  be 
highly  impolitic  and  inconvenient,  as  a  rule  of  law,  to  permit  every 
man  to  destroy  the  characters  of  others,  provided  he  was  not  actuat- 
ed by  motives  of  express  malice,  but  acted  without  consideration, 
heedless  of  consequences. 

Every  legal  analogy  which  can  be  called  in  aid  suggests  the  same 
conclusion.  According  to  the  general  and  ordinary  rules  of  Law,  a 
remedy  is  given  for  every  injury,  that  is,  in  respect  of  every  wilful 
privation  of  right,  and  throughout  the  whole  of  the  wide  range  of 
decisions  on  the  subject  of  injury  to  a  man's  person  or 
[  *212  ]  property,  there  is,  perhaps,  not  *one  to  be  found  where 
the  liability  to  make  compensation  is  not  necessarily  and 
immediately  consequent  upon  a  wilful  privation  of  a  recognized  legal 
right,  in  the  absence  of  a  legal  justification  or  excuse,  arising  from 
collateral  circumstances.  Thus,  in  every  instance  where  a  forcible 
injury  is  committed  against  the  person  or  property  of  another,  the 
actual  intention  of  the  author  of  the  mischief  is  immaterial ;  it  is 
sufficient  that  he  did  the  act  either  wilfully,  or  even  negligently  and 
carelessly  :  no  defence,  in  such  cases,  can  be  founded  on  the  absence 
of  an  actual  intention  to  effect  the  particular  mischief,  and  none  can 
be  made  in  the  absence  of  collateral  circumstances,  which  furnish 
some  legal  justification  or  excuse.  In  all  such  cases,  it  is  the  policy 
of  the  law,  to  make  the  party  who  is  in  fault  make  compensation  to 
the  extent  of  the  injury,  which  he  has  occasioned  to  one  who  was 
blameless ;  and  the  law  not  only  considers  him  to  be  in  fault,  who 


MALICE  IX  LAW.  212 

wilfully  docs  an  act  likely  to  occasion  mischief,  but  also  every  one 
who  produces  such  consequences  l>y  culpable  carelessness  and  inat- 
tention, and  want  of  due  regard  to  the  interests  of  others.  Such 
principles  apply  themselves  to  the   particular  case  of  slander  too 

forcibly  to  require  any  labored   application.     When   the  law  has 
once  defined  the  right  to  character  and  reputation, it  fol- 
lows, as  a  legal  consequence,  'that  any  one  who  wilfully         *218  ] 
deprives  another  of  the  enjoyment  of  that  right,  offends 
against    the  law,  and  is  bound   to  make  reparation  in   damages  co- 
extensive with  the  injury. 

If  such  observations  be  well  founded,  it  is  clear  that,  if  malice  be 
used  as  descriptive  of  this  species  of  injury,  it  must  be  understood 
not  generally  of  actual  malice,  in  the  ordinary  and  popular  sense  of 
the  term,  or,  as  it  has  sometimes  been  called,  malice  in  fact,  but  of 
malice  in  its  legal  and  technical  sense,  as  merely  denoting  that 
which  is  to  be  inferred  from  the  doing  of  a  wrongful  act,  wi  tin  ait 
lawful  justification  or  excuse  (c). 

That  such  ma/ice  in  law,  is,  in  the  absence  of  any  legal  justifica- 
tion or  excuse,  arising  from  collateral  circumstances,  sufficient  to 
support  the  action  for  slander,  seems  now  to  be  settled  by  the  cur- 
rent of  authorities. 

Thus,  in  the  case  of  the  King  v.  Lord  Abingdon  (//),  Lord  Ken- 
yon  observed,  that  "In  order  to  constitute  a  libel,  the  mind  must 
be  in  fault,  and  show  a  malicious  intention  to  defame:  for  if  pub- 
lished inadvertently,  it  would  not  be  a  libel:  but  where  a  libellous 
publication  is  unexplained  by  any  evidence,  the  jury  should  judge 
from  the  overt  act ;  and  where  the  publication  contains  a 
'charge,  slanderous  in  its  nature,  they  should  from  thence  '-'11  ) 
infer  that  the  publication  was  malicious." 

In  the  case  of  the  King  v.  Phillips  (e),  Lord  Ellen  borough,  ob- 
served, that  "In  case  of  libels,  where  the'  publication  is  proved,  the 
law  will  infer  malice."  In  another  case  (/  ).  the  same-  learned 
judge  observed,  that  "Every  unauthorized  publication,  which  is 
detrimental  to  another,  is  in  point  ^l'  law,  to  be  considered  a-  mali- 
cious." 

In  the  case  of  the  King  v.  Oreevy  (g"),  Le  Blanc,  .1.  Baid,  that 
"Where  a  publication  is  defamatory,  the  law  infers  malice,  unless 

(c)  See  Starkie  on   Evidence,  title  Mai-         (<•)  8  East,  470. 
ice — Intention.  (/")  Brown  v.  Croome,  StarkieV 

(,/)  1  Esp.  C.  228.  (:/)  2  M.  ft  ft  ^To 


214  CIVIL  REMEDY— INTENTION. 

any  thing  can  be  drawn  from  the  circumstances  of  the  publication 
to  rebut  the  inference."   [a  a] 

In  the  case  of  the  King  v.  Almon  (A),  the  defendant,  a  book- 
seller, was  convicted  of  publishing  a  libel,  on  proof  of  the  sale  of 
the  book  containing  the  libel,  by  a  servant  of  the  defendant,  in  his 
shop.  And  it  was  said,  by  the  court,  that  this  was  prima  facie 
evidence  sufficient  to  ground  a  verdict  upon  ;  that  if  the  defendant 
had  had  a  sufficient  excuse,  he  might  have  shown  and  proved  it,  and 
that  any  circumstances  of  exculpation  or  extenuation  ought  to  have 

been  established  by  the  defendant. 
[  *215  ]        *  Abbot,  L.  C.  J.  in  the  case  of  the  King  v.  Harvey  (i) 

stated  to  the  jury,  that  "  The  man  who  publishes  slan- 
derous matter,  calculated  to  defame  another,  must  be  presumed  to 
have  intended  to  do  that  which  his  publication  is  calculated  to  bring 
about,  unless  he  can  show  to  the  contrary,  and  it  is  for  him  to  show 
the  contrary." 

A  wanton  disregard  of  the  feelings  of  others,  is,  in  point  of  law 
as  well  as  morals,  inexcusable ;  so  that  it  is  no  defence  for  the  pub- 
lisher of  a  libel,  to  say  that  he  was  but  in  jest,  for,  as  has  been  ob- 
served by  a  learned  writer,  the  mischief  to  the  party  grieved  is  no 
way 'lessened  by  the  merriment  of  him  who  makes  so  light  of  it  (&). 
The  mere  absence  of  malice  in  particular  against  the  party  whose 
reputation  is  destroyed,  and  the  excuse  that  the  real  motive  was  not 
malice,  but  a  desire  of  gain,  is  no  better  plea  than  that  which  might 
be  used  by  a  hired  assassin  (/). 

[«  a]  See   Haire  v.  Wilson,  9  B.   and  (I)  Haw.    P.   C.    c.    73,   s.    14.      It   is 

C.  472,  where  the  court  of  K.  B.  held,  that  scarcely  necessary   to    observe  here,  that 

where  the  tendency  of  the  libel  was  injuri-  these    observations    do    not   apply   where 

ous  to  the  plaintiff,  it  ought  not  to  be  left  words,  in  themselves  offensive,  are  used  in 

as  a  question  for  the  jury,  whether  the  de-  jest,  but  without  intention  to  convey  any 

fendant  intended  to  injure  the  plaintiff  [1]  injurious  imputation,  and  where  the  hearers 

(h)  R.  v.  Almon,  5  Burr.  2686.  do  not  understand  the  words  in  that  sense; 

(i)  2  B.  and  C.  258.  such  cases  fall  under  a  very  different  con- 

(k)  9  Co.  59.  Moor,  627.    Haw.  c.  73.  s.  sideration,  for  there  is   not,  in  effect,  any 

14.  publication  of  slanderous  matter. 

[1]  The  doctrine  advanced  in  Haire  v.  Wilson,  is  not  as  it  would  seem  from  the 
above  note,  that  the  question  of  libel  or  no  libel  is  to  be  withdrawn  from  the  jury,  where 
the  court  are  satisfied  that  the  publication  is  libellous.  That  case  only  determines  that 
the  jury  are  not  to  pass  upon  the  intention  of  the  author  or  publisher,  independent  of, 
and  distinct  from,  the  publication,  but  that  they  must  determine  upon  the  tendency  of 
the  publication,  and  find  their  verdict  accordingly.  That  it  is  the  province  of  the  jury, 
and  not  of  the  court,  to  pass  upon  the  question  of  libel  or  no  libel,  is  clearly  settled 
by  the  case  of  Baylis  v.  Lawrence,  11  Adolph.  &  Ellis,  920,  in  which  the  case  of  Haire 
v.  Wilson,  is  reviewed.     See  also  note  [1,]  page  358,  vol.  i.  infra. 


MALICE  IN  LAW.  215 

If,  however,  the  inference  of  malice  be  a  mere  *infer-    [  *216  ] 
ence  of  law,  it  is  capable  of  being  rebutted  :  but  not,  it 
should  seem,  otherwise  than  by  proof  of  such  an  occasion  of  publish- 
ing, as  furnishes  a  legal  excuse  for  the  act. 

In  the  abstract,  to  deprive  another  of  his  reputation,  by  any  wil- 
ful or  negligent  act,  is  immoral  and  illegal;  but  the  law,  for  wi 
purposes,  and  upon  a  principle  of  policy  and  convenient  uns 

the  right  to  damages,  and  affords  a  privilege  and  protection  to  many 
communications,  though  they  deeply  affect  the  characters  of  individ- 
uals: but  as  such  a  protection  depends  on  considerations  of  le 
policy,  it  is  for  the  law  to  prescribe  its  limits  and  bound;.. 

And  the  law  does  not,  as  it  seems,  extend  that  protection  to  any 
case,  merely  because  an  actual  intention  to  injure  is  wanting,  and 
unless  some  recognized  justification  or  excuse  be  supplied  by  the  oc- 
casion and  circumstances  attending  the  publication. 

From  some  of  the  older  authorities,  indeed,  it  appears  to  be  doubt- 
ful whether,  if  the  speaker  or  writer  acted  without  malice,  in  the  com- 
mon and  popular  sense  of  the  word,  and  intending,  (it  may  be,  I  good, 
rather  than  harm,  to  another,  he  was  civilly  responsible  for  his  act. 

In  the  case,  of  Brook  v.  Sir  Henry  Montague  (to), 
*Coke  cited  a  case,  where  a  clergyman,  in  a  sermon,  re-  [  *217  ] 
cited  a  case  out  of  Fox's  Martyrology,  that  one  Green- 
wood being  a  perjured  person  and  a  great  persecutor,  had  great 
plagues  inflicted  on  him, and  was  killed  by  the  hand  of  God  ;  whereas 
in  truth,  he  never  was  so  plagued,  and  was  himself  present  at  that 
sermon.  And  he  thereupon  brought  his  action  upon  the  case,  for 
calling  him  a  perjured  person  ;  and  the  defendant  pleaded  not  guil- 
ty ;  and  this  matter  being  disclosed  upon  the  evidence,  Wray,  0.  J. 
delivered  to  the  jury,  that  it  being  delivered  asa  story,and  nol  with 
any  malice  or  intention  to  slander  any,  he  was  not  guilty  of  the 
words  maliciously,  and  so  was  found  not  guilty  |  //  >. 

And  Popham  affirmed  it  to  be  good  law.  when  he  delivers  matter 
after  his  occasion  as  a  matter  of  story,  and  not  with  intent  to  slander 

any. 

This  case,  it  is  to  be  observod,  is  no  authority  for  concluding  that 
the  mere  absence  of  a  slanderous  intention  may  furnish  a  legal  de- 
fence, independently  of  a  lawful  occasion  of  publishing;  for  there 
was  in  that  case,  as  will  be  hereafter  Been,  a  lawful  occasion  which, 
in  the  absence  of  actual  malice,  supplied  a  sufficient  justification. 

(m)  He  cited  14  H.  7, 14.     20  H.  6,  84  (n)  Cro.  J.  80. 


217  CIVIL  REMEDY— INTENTION. 

For  the  story  was  delivered  by  a  clergyman,  in  the  course  of  dis- 
charging the  duties  of  his  sacred  office. 
[  *218  ]  *The  plaintiff  brought  an  action  against  one  for  saying 
of  him,  that  he  heard  he  was  hanged  for  stealing  of  an 
horse  ;  and,  upon  the  evidence,  it  appeared  that  the  words  were 
spoken  in  grief  and  sorrow  for  the  news.  Twisden,  J.  cited  this, 
as  a  case  which  he  heard  tried  before  Hobart,  J.  who  nonsuited  the 
plaintiff,  because  the  words  were  not  spoken  maliciously,  and  all  the 
court  agreed  that  this  was  done  according  to  law  (o). 

It  does  not  appear,  from  the  short  statement  of  this  case,  what 
were  the  particular  circumstances  of  the  case  ;  yet  it  seems,  in 
principle,  that  if  any  one,  trusting  to  an  idle  rumor,  occasions 
damage  to  another,  either  in  law  or  in  fact,  he  is,  on  the  principle 
of  natural  justice,  liable  to  render  amends. 

He  is  at  least  guilty  of  negligence,  in  giving  publicity  to  an  injuri- 
ous and  unfounded  calumny. 

The  law,  in  the  ample  provision  which  it  makes  for  the  convenience 
and  exigencies  of  society,  necessarily  regards  the  occasion  and 
circumstances  of  publication,  and  does  not  afford  indemnity  from 
the  consequences  of  publication  of  injurious  and  noxious  matter, 
except  with  a  view  to  some  useful  and  beneficial  purpose, 
[  *219  ]  where  a  party  may  be  supposed  to  act  honestly  *and  sin- 
cerely in  the  execution  of  some  public  or  private  duty. 
The  gratification  of  curiosity,  by  the  circulation  of  unauthenticated 
rumors,  can  scarcely  be  regarded  as  a  fit  object  of  legal  protection. 
If  so,  it  follows  that  every  one  who  ventures  to  propagate  an  unfound- 
ed calumny,  to  the  injury  of  the  character  of  another,  does  it  at  his 
peril,  and  that,  unless  he  can  show  some  lawful  occasions  for  publish- 
ing, that  is,  some  cause  for  publishing  under  the  particular  circum- 
stances which  the  law  recognizes  as  affording  a  sufficient  excuse,  the 
total  absence  of  an  actual  intention  to  injure  will  not  avail  as  a 
justification. 

It  were  almost  needless  to  observe  thatj  in  numerous  cases,  th 
law  gives  an  injured  party  a  compensation  in  damages  against  the 
author  of  the  mischief,  although  the  latter  was  actuated  by  no 
mischievous  intention.  Thus,  if  a  party,  in  the  exercise  of  his  1  aw 
ful  calling  or  business,  casually  injure  the  property  or  possession 
of  another,  he  is  liable  to  make  compensation  in  damages,  although 
he  had  no  intention  to  injure  any  one. 

(o)  Lev.  82.  Mich.  14.  Car.  2.     1  Vin.  Ab.  540. 


MALUM'  IX   LAW. 


219 


So  it  is  no  justification  or  excuse  to  a  man,  thai  he  published  a 
libel,  to  the  injury  of  another,  merely  in  the  course  of  his  bus 
and  occupation  of  a  printer,  for  he,  as  well  as  others,  is 
"bound  so  to  carry  on  his  trade  or  business  as  aot  to  in-     (  *220  J 
jure  others  ( />). 

Th'"  late  case  of  Prosser  v.  Bromagi  (jq)  affords  an  illustration 
of  ili  >se  principles  ;  and  by  this  decision,  the  application  of  the  dis- 
tinction between  malice  in  law  and  actual  malice,  ormalice  in  fact, 
and  the  suffi  siency  of  malice  in  law  to  support  tin,'  action,  seem  to  be 
fully  established. 

The  plaintiffs  were  bankers,  and  the  charge  was,  that,  in  answer  to 
a  question  put  by  one  Lewis  Watkins,  whether  he,  the  defendant,  had 
said  that  the  plaintiffs'  bank  had  stopped,  the  defendant's  answer 
was,  it  was  true  lie  had  been  told  so,  thai  it  was  so  reported  al  <'.. 
and  thai  no  one  would  take  their  bills,  and  thai  he  had  come  to  town 
in  conscquenee  himself.  It  was  proved  thai  C.  D.  had  told  the  de- 
fendant, that  there  was  a  run  on  the  plaintiffs'  bank  at  M.  Upon  this 
evidence,  it  was  left  to  the  jury  to  say  whether  the  defendant  had 
acted  maliciously  and  with  ill-will  towards  the  plaintiffs,  and  that 
they  ought  to  find  their  verdict  for  the  defendant,  if  they  thought 
that  he  had  not  acted  maliciously.  After  a  verdict  for  the  defend- 
ant, upon  a  motion  for  a  new  trial,  the  court  (of  King's  Bench) 
held  that  the  law  recognized  the  distinction  between 
*these  two  descriptions  of  malice,  viz  :  malice  in  fact  and  [  'Ji'l  ] 
malice  in  law.  That  malice,  in  common  acceptation, 
meant  ill-will  against  a  person;  but  in  its  legal  sense,  it  meant  a 
wrongful  act  done  intentionally,  without  legal  justification  <>r  excuse  : 
and  that,  in  ordinary  action  for  slander,  malic  in  fact  was  not  es- 
sential :  thai  malice  in  law  was  sufficient,  and  wa^  to  be  inferred  from 
the  publishing  of  the  slanderous  matter,  the  act  being  wrongful  and  in- 
tentional, and  without  anyjusl  can-"  or  excuse  (r). 


(p)  2  St.  Tr.  7   547. 

(q)    I  B.  SI  C.  247. 

(c)  Bayley,  J.  delivered  the  judgment 
of  the  court,  and  after  stating  the  circum- 
stanc  a    Fth  learned 

onsidered  the  words  as  pro1  ed,  an  I 
he  'I  ea  not  appear  to  have  treated  it  as  a 
case  of  privileged  communication;  but  us 
the  defendant  <  1  i <  I  not  appear  to  be 
ated  by  any  ill-will  against  the  plaintiffs, 
he  told  the  jury,  that  if  they  thought  the 

Vol.  I.  21 


words  were  iu>t  Bpoken  malicoiuly,  I 
they  might  unfortunately  have   pi 

to  the  pi  dntiffs,  the  defendan 
to  have  their  verdict;  but  if  they  thought 
them  Bpoken  maliciously,  they  Bnould  find 
for  tin-  plaintiff1;  and  tin-  jury  having  found 
for  the  defendant,  the  question,  upon   a 

for  a  new  trial,  was  upon  the  pro- 
priety  of  this  direction.     It'  in  an  ordinary 

Blander,  (not  a 
oi  mmunication,)  want  ut'  malioe  is  a  que*- 


221  CIVIL  REMEDY— INTENTION. 

[  *222  ]        *So  if  the  author  of  a  libel,  though  he  never  intend- 
ed to  publish  it,  were  so  negligent    to  keep  it,  that 

Hon  of  fact  for  the  consideration  of  a  jury,  And   I  apprehend  the   law  recognizes  the 
the  direction  was  right;  but  if  in  such  a  distinction  between  these  two  descriptions 
case,  the  law  implies  such  malice  as  is  ne-  of  malice,   malice   in    fact  and   malice   in 
cessary  to   maintain  the  action.it  is  the  law,  in  actions  of  slander.     In  an  ordinary 
duty  of  the  judge  to  withdraw  the  question  action  for  words,  it  is  sufficient  to  charge 
of  malice  from    the  consideration  of  the  that  the  defendant  spoke  them  falsely ;  it 
jury ;  and  it  appears  to  us  that  the  direc-  is  not  necessary  to  state  that  they  were 
tion  in  this  case  was  wrong.     That  malice,  spoken  malieiously.    This  is  so  laid  down 
in  some  sense,  is  the  gist  of  the  action,  and  in  Styles,  392,  and  was  adjudged  in  error 
that,  therefore,  the  manner  and  occasion  of  in   Mercer   v.    Sparks.     Owen,   51.  Noy, 
speaking  the  words  is  admissible   in  evi-  35.      The  objection   there   was,    that   the 
dence,  to  show  they  were  not  spoken  with  words  were  not  charged  to  have  been  spo- 
malice,  is  said  to  have  been  agreed,  (either  ken  maliciously;  but  the  court  answered, 
by  all  the  judges,  or  at  least  by   the  four,  that  the  words  were  themselves  malicious 
who  thought  the  truth  might  have  been  and  slanderous,  and  therefore    the  judg- 
given  in  evidence  on  the  general  issue,)  in  ment  was   affirmed.      But  in    actions   for 
Smith  v.  Richardson,*  and  it  is  laid  down,  such  slander  as  is,  prima  facie,  excusable, 
1  Com.  Dig.  action  upon   the  case  for  defa-  on   account   of   the  cause   of  speaking  or 
mation,   G.   5,  that  the   declaration  must  writing  it,  as  in  the  case  of  servants' char- 
show  a  malicious  intent  in  the  defendant;  acters,  confidential  advice,  or   communica- 
and  there  are  some  other  very  useful  ele-  tions  to  persons  who  ask  it  or  have  a  right 
mentary  books,  in  which  it  is  said   that  to  expect  it,  malice  in  fact  must  be  proved 
malice  'is  the  gist  of  the  action,  but  in  what  by  the  plaintiff;  and  in  Edmonson  v.  Ste, 
sense  the  word  malice,  or  malicious  intent,  venson,  B.  N.  P.  8,  Lord  Mansfield  takes  the 
are  here  to  be  understood,  whether  in  the  distinction  between  these  and  ordinary  ac- 
popular  sense  or  in  the  sense  the  law  puts  tions    of  slander,      In     Weather  stone    v. 
upon  those   expressions,  none  of  these  au-  Hawkins,    1    T.  R.  110,  where  a  master, 
thorities  state.     Malice,  in  common  accep-  who  had  given  a  servant  a  character,  which 
tation,  means  ill-will  to  a  person;  but  in  prevented  his  being  hired,  gave  his  brother- 
its  legal  sense,  it  means    a   wrongful  act  in-law,  who  applied  to  him  upon  the  sub- 
done  intentionally,  without  just  cause  or  ject,  a  detail,  by  letter,  of  certain  instances 
excuse.     If  I  maim  cattle  without  knowing  in  which  the  servant   had  defrauded  him. 
whose  tney  are,  if  I  poison  a  fishery  with-  Wood,  who  argued  for  the  plaintiff,  insisted 
out  knowing  the  owner,  I  do  it  of  malice,  that  this  case  did  not  differ  from  the  case 
because  it  is  a  wrongful  act,  and  done    in-  of  common   libels;    that   it  had   the   two 
tentionally.     If  I  am  arraigned  of  felony,  essential   ingredients,    slander    and   false- 
and  wilfully  stand   mute,  I  am  said  to  do  hood;  that  it  was   not  necessary  to  prove 
it  of  malice,  because  it   is  intentional  and  express   malice;  if  the   matter   is  slander- 
without  just  cause  or  excuse:  and  if  I  tra-  ous,  malice  is  implied;  it  is  sufficient  to 
duce  a  man,  whether  I  know  him  or  not,  prove  publication;  the  motives  of  the  party 
and  whether  I  intend  to  do  him  an  injury  publishing  are  never   gone  into;  and  that 
or  not,  I  apprehend  the  law  consfders  it  as  the  same  doctrine  held  in  actions  for  words , 
done  of  malice,  because  it  is  wrongful  and  no  express  malice  need  be   proved.     Lord 
intentional.     It  equally  works   an  injury,  Mansfield  said  the  general  rules  are  laid 
whether  I  meant  to  produce   an  injury  or  down  as  Mr.  Wood  has  stated;  but  to  every 
not;  and  if  I  had  no  legal  excuse  for  the  libel  there  may  be  an  implied  justification 
slander,  why  is  he  not  to  have  a  remedy  from  the  occasion.    So  as  to  the  words, 
against  me    for  the  injury   it  produces?  instead  of  the  plaintiff's  showing  it  to  be 

*  Wills,  24. 


MALH'i:   IN"   LAW. 


through  mere  *inadvertence,  the  contents  became  public,  to  [  "223  ] 
the  detriment  of  another's  reputation,  he  would  no  doubt, 


false  and  malioious,  it  appears  to  be  inci- 
dent il  to  the  application  by  tin;  intended 
master  for  the  character,   and  Bnller,  .1. 

said  tliis  is  an  exception  to  the  general  rule, 
on  account  of  the  occasion  of  writing.     In 
actions  of   tins    kind,  the   plaintiff  must 
prove  the  words  "  malicious  "  as  well  as 
false.      Buller,   J.    repeats   in    Pasley    v. 
Freeman,  3  T.  It.  61,  that   for  words  spo- 
ken   confidentially  upon    advice  asked,  no 
action  lies,  unless  express  malice  can   be 
proved  [1].  So  in  Hargrove  v.  Le  Breton, 
4  Burr.  2425.     Lord  Mansfield  states  that 
no   action    can    be   maintained    again 
master  for  the  character  he  gives  a  servant, 
unless  there  are  extraordinary  circumstan- 
ces of  express  malice.     But  in  an  ordinary 
action  for  a  libel  or   for  words,  though  evi- 
dence of  malice  may  be  given    to    increase 
the  damages,  it  never  is   considered  as  es- 
sential; nor  is  there  any  instance  of  a  ver- 
dict for   the   defendant   on   the  ground    of 
want  of  malice.  Numberless  occasions  must 
have  occurred,    (particularly  where  a  de- 
fendant only  repeated  what  he  had   heard 
before,  but  without  naming  the  author,) 
upon  which,  if  that  were  a  tenable  ground, 
verdicts  would    have  been    sought  for  and 
obtained,  and  the  absence  of  any  such  in- 
stance  is   a   proof  of  what   has   been   the 
general    and    universal    opinion    upon    the 
point.     Had  it  been  noticed  to  the  jury  how 
the  defendant   came    to    speak    the   words 
and  had  it  been  left  to  them,  as  a  previous 
question,  whether  the  defendant  understood 
Watkins  as  asking   for   information  for  his 
own    guidance,    and     that    the   defendant 
spoke  what  he  did   to  Watkins  merely  by 
way  of  honest  advice,  to  regulate  his 
duct,  the    question  of  malice  in  fact  would 
have  been  proper  as   a  second  question  to 
the  jury,  if  their    minds  were    in    favor  of 
the  defendant   upon   the   first;  but  as  the 
previous  question  I    have   mentioned    was 


never  put  to  the  jury,  but  this  was  treated 
as  an  ordii  :  Blander,  we  are  of 

opinion  that  the  question  of  malii oght 

not  to  have  been  left  to  the  jury.    It  was, 
however,  pressed   npon   us  with  oonsider- 
brce,  that   we  onght   not  to  grants 
new  tri  d,  on  the  ground  thai  the  evi  L< 

did    •  •  any  of  the  OOUUtS    in   the 

declaration;  but  upon  carefully  attending 
to  the  declaration  and  the  evidence,  we 
think  we  are  not  warranted  in  Baying,  that 

there  was  no  evidei to   go  to  the  jury  to 

support    the    declaration,    and    had    the 
Icirned  judge  intimated   an  opinion  that 
there  was    no    such  evidence,  the  plaintiff 
might  have  attempted  to  Supply  the  dl  ' 
We,  therefore,  think  that  we   cannot  pro- 
perly refuse   a   new  trial,  upon  the  ground 
that  the  result  upon  the  trial  might  have 
been  doubtful.     In  granting    a    new   trial* 
however,  the  court   does  not  mean  i 
that  it  may  not  be  proper  to  pat  ' 
tion  of  malice  as  a  question  of  fact  for  the 
consideration   of  the  jury;  for    if  the  jury 
should    think,   that    when    Watkins 
his  question,  the  defendant   understood  it 
as  asked  in  order  to  obtain  informati 
regulate  his  own   con  luct,  it   will   i 
under  the  olass  of  privileged  communica- 
tions, and   the  question  of  malice,  in  hot, 
will  then  be  a  necessary  part  of  the  jury's 
inquiry:  but  it  dot  9  not  appear  that  it 
left  to  the  jury,  in    this  case,  to  ooi  - 
whether  this  was  understood  by  the  defend- 
ant, as  an  application    to  him  for  a  i vice, 
and   if  not,   the   question   >.'(   < 
improperly  left  t"  their  consideration.     V7e 
are,  therefore,  of  i  pinion,  that  the  rule  for 
a  new  trial  must  be  absolute. 

Iii  the  a  ise  of  Dan   i  i  ••    l'  ■ 
B.  &  C   685,  Abb.. n,  L  C.   .1  - 

••  I  t  ike  it  to    b  ll    rule,  th  r   an 

B  it,  unlawful  in  itself  and  injurious    t"  an- 
other, is  oonsi  lere  1  b  ith  in  law  an  1  re 


[1]  In  Van  Spike  v.  Cleyson,  Cro.  Eliz.  541,  it  was  hel  1  not  to  be  actionable  for  one 
man  to  tell  another  confidentially,  not  to  trust  a  merchant  for  (it  was  said)  it  is  only 
by  way  of  counsel. 


223  CIVIL  REMEDY— INTENTION. 

[  *224  ]  be  considered  amenable  in  damages.     He  had  no  right  *to 
place  the  character  of  another  in  jeopardy  without  lawful 
excuse,  and,  in  law  as  well  as  morals,  is  responsible  for  the 
[  *225  ]    injury  which  his  culpable  *negligence  has  occasioned. 
The  legal  principle  on  which  such  responsibility  is  found- 
ed, is  clearly  delivered  in  Buller's  Law  of  Nisi  Prius. 

Every  man  ought  to  take  care  that  he  does  not  injure  his  neigh- 
bor ;  and,  therefore,  whenever  a  man  receives  a  hurt 
[  *226  ]    through  the  default  of  'another,  though  the  same  were 
not  wilful,  yet  if  it  be  occasioned  by  negligence  or  folly, 
the  law  gives  him  an  action  to  recover  damages  for  the  injury  so  sus- 
tained (tf). 

This  principle  comprehends  not  only  the  instance  just  mentioned, 
where  a  writing  not  intended  to  be  published,  is  nevertheless,  divulged 
for  want  of  care,  but  every  case  in  which  a  noxious  publication  re- 
sults from  mere  levity  or  thoughtless  jocularity  ;  for  though  the  actual 
intention  to  produce  mischief  might  not  at  the  moment  actually  in- 
fluence the  mind  of  the  defendant,  yet  he  was  gnilty  of  a  wilful  in- 
vasion of  the  natural  and  absolute  right  of  another  man, — an  act 
for  which,  in  point  of  natural  justice,  he  is  responsible,  and  from 
which',  malice,  in  its  legal  sense,  is  necessarily  to  be  inferred. 

The  plea  of  minority  affords  no  defence  to  an  action 
[  *227  ]  *for  slander  or  libel,  though  a  precedent  is  to  be  found  of 
a  plea  that  the  defendant  was  an  infant,  within  the  age  of 
seventeen  (r),  the  validity  of  such  a  plea  was  denied  by  Lawrence 
J.  in  the  case  of  Woolnoth  v.  Meadows  (s).  And  Lord  Kenyon 
expressly  stated,  that  if  an  infant  utter  slander,  he  is  responsible 
for  it  in  a  court  of  justice  (f). 

But  though  actual  malice  be  not  essential  to  civil  liability,  and 
though  it  be  sufficient  that  the  defendant  has  acted  wilfully,  or 
even  negligently  and  carelessly,  without  a  due  regard  to  the  char- 
acter and  reputation  of  another,  yet  still  the  mere  act  of  communi- 
cating that  which  is  slanderous,  will  not  subject  a  party  even  to 
civil  liability,  without  some  degree  of  culpability  on  his  part.  If, 
for  instance,  a  servant  or  agent  were,  in  the  ordinary  course  of  his 
duty,  to  deliver  a  sealed  libel,  without  any  knowledge  of  its  con- 
to  be  done  maliciously  toward  the  person  (7)  B.  N.  P.  95. 
injured,  and  this  is  all  that  is  meant  in  a  (r)  Com.  Dig.  Pleader,  2  L.  2. 
declaration  of  this  sort,  which  is  introduced         (s)  5  East.  411. 

rather  to  exclude  the  supposition  that  the  (0  8  T.  R.  337.  See  also  Bac.  Ab.  tit. 
publication  had  been  made  on  some  inno-  Infancy.  Starkie  on  evidence,  tit.  Infant, 
cent  occasion,  than  for  any  other  purposes. 


MALICE  IN   LAW.  227 

tents,  though  ho  were   thus  the  actual  instrument  of  publics 
yet  if  he  acted  but  as  th  ■  agent  of  another,  without  any  reason  for 
suspecting  that  any  wrong  was  inteD  I"  I.  be  would  not 
Bubject  'himself  to  any  civil,  still  less  I  i  any  criminal,    |     228  J 
responsibility. 

This  application  of  a  plain  ami  general  principle  of  natural  jus- 
tice, is  too  obvious  to  require  further  observation  in  this  pla 


CHAPTER  IX. 


Justification — Truth. 

[  *229  ]  *Having  thus  observed  upon  the  question  of  intention, 
as  considered  independently  of  the  occasion  of  publish- 
ing and  of  all  collateral  circumstances,  the  subject  is  next  to  be 
considered  in  reference  to  the  occasion  and  circumstances  of  the 
act. 

These  may  either  constitute  an  absolute  and  peremptory  defence 
to  the  action,  independently  of  the  question  of  intention,  or  they 
may  supply  a  qualified  or  conditional  justification,  dependent  on  the 
actual  intention>  of  the  party. 

The  former  class,  where  the  defence  is  wholly  independent  of  the 
question  of  actual  intention,  is  subject  also  to  a  distinction,  depend- 
ent on  the  existence  or  non-existence  of  a  probable  cause  for  the  act. 

In  the  first  place," the  defendant  is  justified,  in  law,  and  exempt 
from  all  civil  responsibility,  if  that  which  he  publishes 
[  *230  ]  be  true  (a).  For,  as  has  *already  been  observed,  no 
one,  in  point  of  natural  justice  and  equity,  can  have  any 
title  to  a  false  character ;  he  can  show  no  legal  interest  in  the  sup- 
pression of  the  truth,  or  in  the  continuance  of  error  ;  it  would  be 
inconsistent  with  every  sound  legal  principle  and  analogy,  to  allow 
him  to  recover  damages  for  an  injury  to  that  which  be  either  does 
not,  or  at  least  ought  not  to  possess  ;  and  it  would  be  contrary  to 
the  plainest  and  most  obvious  principles  of  public  policy  and  con- 
venience, to  permit  a  man"  to  make  gain  of  the  loss  of  that  repu- 

(«)  It   may,  perhaps,   be  doubted,  (as    truth  as   a  collateral   ground     of  defence; 
has  already  been  suggested,   supra,  p.  7,)     and   some   reasons,    principally   technical, 
whether  it   might  not   be   more  correct  to     have  been   assigned  for  adoptiug  the  latter 
consider  the  falsity  of  the  slander  as  of  the     course.     Supra,  p.  5,  in  the  note, 
essence  of  the  wrong,  than  to  treat  the 


ABSOLUTE  JUSTIFICATION— TRUTH.  230 

tation  and  character  in  society,  which  he  had  justly  forfeited  by 
his  misconduct  (  b  ). 

Sir  William  Hlackstone  (r),  in  his  Commentari 
•seems  to  consider  the  defendant's  exemption,  in  this  in-  |  '-:'-l  ] 
stance,  as  extended  to  him  m  consideration  of  his  mi 
in  having  warned  the  public  against  the  evil  practices  of  a  delin- 
quent. He  says,  that  ii  is  damnum  absque  injuria,  intimating  that 
the  act  of  the  defendant  does  not  constitute  a  wrong  in  it-  Legal 
sense;  and  then  proceeds  to  observe,  that  this  lable  to  the 

reasoning  of  the  civil  law.  l-  /•.'/////  qui  nocenlem  infamavit  non  est 
cequum  et  bonum  ob  earn  rem  condemnari,  peccata  enim  nocenlium 
cognita  esse  et  oportere  el  expedire."  Notwithstanding  this,  there 
seems  to  be  some  difficulty  in  supporting  this  justification,  on  the 
ground  that  the  defendant's  act  is  not.  in  contemplation  of  law,  a 
wrong,  since,  as  will  he  seen,  it  is  considered  a-  >m-h  in  the  crim- 
inal proceeding,  and  if  the  act  be  justifiable,  because  it  confers 
public  benefit,  it  must  be  so  to  all  legal  purposes;  for  it  would 
savor  too  much  of  paradox  to  say,  that  in  respect  of  an  individual 
claiming  a  private  compensation,  the  act  is  innocent,  because  it  is 
beneficial  to  the  public,  but  that,  in  relation  to  the  public  so  bene- 
fited, the  same  act  is  wrongful.  It  may,  therefore,  be 
more  consistent  to  consider  the  'plaint iff  as  having  ex-  [  *2G2  ] 
eluded  himself  from  the  protection  of  the  law  by  his 
own  misconduct,  than  to  attribute  the  exemption  to  any  merit  ap- 
pertaining to  his  adversary. 

When  a  plaintiff  is  really  guilty  of  the  offence  imputed  he  does 
not  offer  himself  to  the  court  a-  a  blameless  party  seeking  a  remedy 
for  a  malicious  mischief;  his  original  misbehaviour  taints  the  whole 
transaction  with  which  it  is  connected,  and  precludes  him  from 
recovering  that  compensation  to  which  an  innocenl  person  would  be 
entitled  (c). 

(l>)    Sec  Preliminary     Discourse.      By  action  cannot  be  maintained  for  an  alleged 

shoving  the  truth  of  tlic  slanderous  At-  libel  against  the   plaintiff,  in  bis   vocation 

ter,  you  do  not  showthat   it  was  not  mali-  »s  an  exhibitor  of  sparring  mat 

ciously  spoken  or  published,    but  merely  v.   B                 .  1. 

that  the  party  is  not  entitled  todamages,  (c)  8  Bl.  Com.   126.    But  although  the 

because  he  is  guilty  of  the  charge  imputed,  doctrine  of  the  civil  law.  ii.                    raofa 

Per  Holroyd,  J.  in  the  oase  of  Fairtnanv.  actions,  is  by  i                 free  from. 

Ives  5  15.  &  A.  G4G.  rity, tiwdefence                u  ly  t>>  have 

On  similar   grounds  of  public  policy,  it  limited  to  those    insl                 ere  the  public 

has  been  held,  that  a  man  cannot  recover  was  benefited  by  a  publication  of  the  truth. 

damages  for  any  defamation  which    affects  Bee  Preliminary  Discourse,  xxxvii. 

him  merely  in  respect  of  some  illegal  trade  (c)  Sec  Preliminary  Discourse,  xxxi. 
or  occupation.     Thus,  it  seems,  that  an 


232      CIVIL  REMEDY— OCCASION  OF  PUBLISHING. 

That  the  truth  was  a  good  justification,  docs  not  appear  to  have 
been  doubted  in  the  case  of  words  spoken  ;  in  respect  of  an  action 
for  libel,  indeed,  the  contrary  has  been  maintained,  but  the  author- 
ities upon  this  point,  though  not  numerous,  fully  establish  the  valid- 
ity of  such  a  justification. 

In  the  case  of  the  King  v.  Roberts  (c/),  Lord  Hardwicke,  C.  J. 
is  said  to  have,  thus  expressed  himself  on  a  motion  for  an  infor- 
mation against  the  defendant :  "  It  is  said,  that  if  an  action  were 
brought,  the  fact,  if  true,  might  be  justified ;  but  I  think  that  is  a 
mistake,  such  a  thing  was  never  thought  of  in  the  case 
[  *283  ]  of  Harmanv.  Delany  (e).  I  *never  heard  such  a  justi- 
fication in  an  action  for  a  libel  even  hinted  at,  the  law  is 
too  careful  in  discountenancing  such  practices  ;  all  the  favor  that  I 
know  truth  affords  in  such  a  ease  is,  that  it  may  be  shewn  in  mitiga- 
tion of  damages ;  and  of  the  fine  in  an  indictment  or  infor- 
mation"   [1]. 

Aud  in  another  case,  it  was  said  by  Lee,  C.  J.  (/)  (upon  the 
trial  of  the  defcudaut  upon  an  information),  that  it  had  always  been 
holden  that  the  truth  of  a  libel  could  not  be  given  in  evidence  by 
way  of  justification  ;  because,  where  the  person  charged  with  any 
crime 'is  guilty,  he  ought  to  be  proceeded  against  in  a  legal  course, 
and  not  reflected  upon  in  such  a  manner.  In  the  King  v.  Bicker- 
ton  (#•),  the  Chief  Justice  (Ji)  observed,  (upon  a  motion  for  a  crim- 
inal information),  that  though  truth  be  no  justification  for  a  libel,  as 
it  is  for  defamatory  words,  yet  it  would  be  sufficient  cause  to  pre- 
vent the  extraordinary  interposition  of  the  court. 

(d)  B.  R.  M.  T.  8.  G.  2.   MSS.     3  Bac.         (/)  Sel.  Ni.  Pri.  1st  ed.  929. 
Ab.  455.     Dig.  Law.  Lib.  16.  Sel.  Ni.  Pri.         (g)  Str.  498. 

1st  Edit.  929.  (h)  Sir  J.  Pratt. 

(e)  Str.  898. 

[1]  Lord  Hardwicke  in  Michaelmas  term,  8  Geo.  II.  A.  D.  1735,  spoke  of  the 
truth  being  given  in  evidence  in  mitigation  of  damages,  and  in  Underwood  v.  Parks, 
2  Strange,  1200,  Mich.  T.  17,  Geo.  II,  it  is  safc  the  defendant  offered  to  prove  the 
words  to  be  true  in  mitigation  of  damages  ;  and  it  is  still  often  said  that  the  truth 
cannot  be  given  in  evidence  under  the  general  issue  either  in  bar  or  in  mitigation  of 
damages.  '  In  the  time  of  Lord  Hardwicke,  it  was  denied  not  only  by  him,  but  by  oth- 
ers, that  the  truth  could  be  given  in  evidence  in  bar  of  a  recovery,  and  there  was 
therefore  no  inaccuracy  in  speaking  of  giving  the  truth  in  evidence  in  mitigation,  for  it 
was  then  admissible  for  that  purpose  ;  but  since  it  has  been  conceded  on  all  hands, 
that  the  truth  may  be  given  in  evidence  in  justification  of  the  words  spoken,  it  is  in- 
accurate and  calculated  to  produce  a  confusion  of  ideas,  to  speak  of  giving  the  truth  in 
evidence  in  mitigation  of  damages  ;  for  if  the  truth  of  the  words  can  be  shown,  the 
defendant  is  entitled  to  claim  not  merely  that  the  evidence  be  received  in  mitigation  of 
damages,  but  that  it  shall  operate  as  a  bar  to  the  recovery. 


ABSOLUTE  JUSTIFICATION— TRUTH.  233 

In  tho  last  two  cases,  the  dicta  of  the  learned  judges  cannot  bo 
but  understood  as  spoken  with  reference  to  the  criminal  proceeding 
before  them,  and  therefore  as  no  authorities  in  reaped  of  an  action. 
— On  the  other  hand,  Hobart,  C.  J.  in  the  case  of  Lake 
v.  Halton  (i),  said,  that  a  libel,  though  'the  contents  be  [  *2S4  I 
true,  may  lie  justified  in  an  action  upon  the  C 

And  Holt,  C.J.  laid  it  down  expressly,  that  "A  man  (A),  may  justify 
in  an  action  for  words  or  for  a  libel',  otherwise  in  an   indictment." 

In  the  case  of  T  Anson  v.  Stuart  (/),  the  truth  was  pleaded  in 
bar  of  the  action  for  written  slander,  and  no  objection  was  made  or 
exception  taken,  either  by  the  court  or  the  plaintiff's  counsel  to 
the  defendant's  right  to  avail  himself  of  a  defence  of  that  nature. 

Sir  William  Blackstone  seems  to  have  been  of  opinion,  that  the 
truth  was  a  good  justification  in  case  of  an  action  for  libel  ;  since 
after  asserting  that  it  is  a  good  defence  in  case  of  slander  spok- 
en (ni),  he  adds,  "  What  was  said  with  regard  to  words  spoken,  will 
also  hold  in  every  particular  with  regard  to  libels  by  printing  or 
writing,  and  the  civil  action  consequent  thereupon.  («) 

With  respect  to  an  action  for  Scandalum  Magnatum,  it  was  re- 
solved in  the  Earl  of  Northampton's  case  (o),  that  "  the  publishing 
of  false  rumors,  either  concerning  the  king  or  of  the  high 
*grandecs  of  the  realm,  was  in  some  cases  punishable  by  [  *23o  ] 
the  Common  Law  ;  but  of  this  were  divers  opinions.  Ye\ 
it  was  resolved  in  general,  that  touching  the  matter  and  quality  of 
the  words,  that  they  ought  to  be  false  and  horrible." 

North,  C.  J.  (//)  was  of  opinion,  that  under  the  statute,  the  de- 
fendant could  not  justify  in  an  action  for  scandalum  magnatum.  But 
both  Atkins  and  Scroggs,  justices,  thought  differently  :  and  the  latter 
held,  that  the  words  in  the  principal  case  might  have  been  justified 
by  showing  tin;  special  matter  either  in  pleading  or  evidence. 

And  in  Lord  Cromwell's  case  ( 7 ),  the  defence  in  such  an  action 
seems  to  have  been  considered  on  the  same  footing  with  a  common 
action  of  slander.  The  general  rule,  therefore,  seem-  to  be,  that  in 
an  action  for  words,  their  truth  is  a  good  justification  |  1  1. 

(0   Hob.  Rep.  253.  126,   11th  Ed.;  mil  Bdwjn'a  Ni."  1'ri.  1st 

(ft)    11  Mod.  99.  el   929. 

(/)  1  T.  11.748.  (o)   V2  Hop.  1. 

(m)  3  Bl.  Com.  125.  (jt)  2  Mod.  L60, 

(«)  See  also  3  Wood.  182;  3  Bl.  Com.      (q)  4  Co.  13. 


[1]   Until  1792  when  the  judges  of  England  give  their  opinion  in  parliament  upon 
questions  put  to  them  ou  the  Libel  Bill,  the  only  authorities  for  the  position  that  a  do- 
VOL.   I.  22 


235     CIVIL  REMEDY— OCCASION  OF  PUBLISHING. 

The  plaintiff  was  charged  as  accessary  to  a  felony,  the  principal 
havin<>-  been  acquitted :  and  it  was  held  to  be  competent  for  the  de- 
fendant to  go  into  evidence  to  prove  his  guilt,  because  what  had 
passed  between  others  could  not  affect  him  (r). 

Where  (s)  the  words  imputed  a  charge  of  murder,  for 
[  *2oG  ]  which  the  plaintiff  had  been  tried  and  acquitted  *it  was 
held  that  the  defendant  might  justify  specially,  and  that 
the  truth  of  such  plea  might  be  tried.  And  it  has  been  said  that 
where  the  defendant  justifies  specially,  by  pleading  the  truth  of  a 
capital  offence  imputed  to  the  plaintiff  (0,  on  such  issue  being  found 
against  the  plaintiff,  he  may  be  put  upon  his  trial  for  the  offence 
without  intervention  of  a  grand  jury. 

The  justification  must  be  pleaded,  and  proved  with  great  precision. 
Thus  if  the  defendant  tax  the  plaintiff  with  having  feloniously  stolen 
a  sum  of  money,  it  will  be  no  justification  that  the  plaintiff  had  in 
fact  (w)  stolen  some  other  personal  chattel  [1]  . 

So  where  the  defendant  (a;)  said  of  a  counsellor  at 

I"  *237  ]  *iaw,  "  You  are  a  paltry  lawyer,  and  use  to  play  on  both 

hand's."     The  defendant  justified  as  to  the  latter  words, 

(r)    Cook  v.  Field,  3  Esp.  C.  133.  of   murder,  she  -was  thereupon  tried  and 
(s)  England  v.  Bourke,  3  Esp.  C.  80.  convicted  at  the  King's   Bench  Bar,  and 
(/)  3  Esp.  R.  133.  Cook  v.  Field.     Many  carried  down  and  burnt  in  Berkshire, 
remarkable  cases  have  occurred,  where  the  And  the  Chief   Justice    mentioned   the 
plaintiff's  action  for  slander  imputing  the  case  of  a  plaintiff  who  brought  his  action, 
commission  of  a  crime,  has  occasioned  his  the  defendant   having  called  him  a  high- 
prosecution  for,  and  conviction  of  the  im-  wayman;  upon  the  trial  it  appeared  that 
puted  offence.     In  the  case  of  Johnson  v.  he  was  one;  he  was  taken  in  court,  corn- 
Browning,  6  Mod.  217.  Ld.Holt,  C;  J.  cited  mitted  to  Newgate  and  hanged. 
a  case  (Pigot's  case,  Cro.  Car.  383.)  where  And  Darnell  (adds  the  reporter)  remem- 
a  mother  recovered   damages  against  her  bered  the  like  fate,  which  befel  a  client  of 
son-in-law  for  having  maliciously  prosecut-  his. 
ed  her  for  the  murder  of  his  father.     He,  (u)  Cro.  J.  676. 
to  requite  her  kindness,  b  ought  an  appeal  (x)  Cro.  J.  267. 


fendant  might  plead  the  truth  of  a  libel  in  justification  were  the  dicta  of  Hc~ 
bart,  C.  J.  in  Lake  v.  Hatton,  Hob.  R.  253,  and  of  Holt,  C.  J.  in  an  anony- 
mous case,  11  Mod.  99,  and  the  acquiescence  of  the  bar  and  the  court  in  J' 
Anson  v.  Stewart,  1  T.  R.  748.  See  Holt's  Law  of  Libel,  p.  280.  Since  then,  how- 
ever, are  the  cases  of  King  v.  Parsons,  in  which  Lord  Kenton,  before  whom  the  cause 
was  tried  in  1799,  observed  that  it  was  competent  for  a  defendant  in  an  action  for  a  libel, 
to  plead  the  truth  of  the  supposed  libel  in  justification;  and  of  Plunket  v.  Cobbett,  tried 
before  Lord  Ellenborotjgh  in  1804,  in  which  that  learned  judge  observed  in  his  remarks 
to  the  jury,  "  in  case  the  libel  had  been  true  it  would  have  been  open  to  the  defendant 
to  have  justified  it  on  the  record." 

[1]  See  to  the  same  effect  Andrews  o.  Van  Duzer,  11  Johns.  R.  38;  Van  Ness  v.  Ham- 
ilton, 19  Id.  349. 


ABSOLUTE  JUSTIFICATION'— TRUTH.  237 

that  the  plaintiff  had  devised  certain  articles  against  F.  R.  concern- 
ing misdemeanors  Bnpposed  to  have  been  done  by  him,  and  after- 
wards promised  F.  R.  that  he  should  not  be  molested  l>y  reason  of 
the  said  articles;  and  yet,  notwithstanding,  by  the  procurement  of 
others,  the  plaintiff  endeavored  to  prosecute  F.  R.  apon  the  articles, 
before  the  chancellor  and  commissioners  of  the  Archbishop  of  Can- 
terbury; and  the  plea  was  held  to  be  bad  on  demurrer. 

No  suspicion,  however  strong,  will  amount  to  a  justification  l  >n. 
Neither  is  common  fame  any  ground  for  justifying  an  extrajudicial 
charge  (  c  ). 

In  Cuddinglon  v.  Wilkin*  (a),  which  was  an  action  for  publish- 
ing these  words  of  the  plaintiff,  "He  is  a  thief:"  tic-  defendant 
pleaded,  that  the  plaintiff  had  been  guilty  of  Btealing  six  sheep. 
The  plaintiff  replied  that  after  the  felony,  ami  before  the  publication 
of  the  words,  he  had  been  pardoned  by  a  general  pardon. 
Upon  a  demurrer,  *this  replication  was  holder)  to  be  good,  [  '238  ] 
inasmuch  as  the  guilt,  as  well  as  the  punishment,  is  taken 
away  by  a  pardon.  And  it  was  held,  that  it  makes  no  difference  in 
such  case,  whether  the  pardon  be  general  or  special,  of  which  the 
defendant  might  have  been  ignorant,  for  that  every  person  who  pub- 
lishes slanderous  words  does  it  at  his  peril. 

But  it  was  said,  that  if  he  had  been  convicted  and  pardoned  after- 
wards, it  would  be  otherwise. 

But  (b'j  a  pardon  after  a  conviction  of  perjury  will  not  restore 
the  perjured  person  to  his  credit. 

It  has  long  been  settled  (c),  that  the  truth,  if  relied  npon  as  a 
justification,  or  even  in  mitigation  of  damages  [1].  must  be  pleaded. 
And  as  the  degree  of  certainty  and  precision  necessary  t"  complete 
a  justification  of  this  nature  is  inseparably  connected  with  the  form 
and  rule  of  pleading,  further  remarks  upon  this  topic  will  be  re- 
served for  the  division  in  which  the  technical  mod,'  of  framing  the 
plea  is  considered. 

(j/)  Powell  v.  Plunkett,  Cro.  Car.  52.  (/,)  Sid.  92. 

(z)  Hutt.  18.    Bridg.  62.  Brownlow,  2.        (c)  Str.  1200. 
(«)  Hob.  81. 

[1]  See  note  [1]  p.  L'SG,  supra. 


CHAPTER  X. 


Op   Publications   made   in  the  Course  of    Parliamentary   or 
Judicial  Proceedings. 

"  *239  ]        *The  law,  also,  without  regard  to  the  question  of  in- 
tention, and  on  grounds  of  obvious  policy  (a),  repels  the 
claim  to  damages  in  respect  of  any  publication  duly  made  in  the 
ordinary  course  of  a  parliamentary  or  judicial  proceeding. 

In  the  first  place  (6),  it  seems  that  no  member  of  either  house  is 
in  any  shape  responsible  in  a  court  of  justice  for  any  thing  said  in 
that  house,  however  offensive  the  matter  may  be  to  the  feelings,  or 
detrimental  to  the  interest  of  any  individual  (c)  ;  for  policy  requires 
that  those  who  are  by  the  constitution  appointed  to  provide  for  the 
safety    and    welfare  of   the  public,  should,  in  the  exe- 
[  *240  ]    cution  of  their  high  functions,  be  wholly  uninfluenced  *by 
private  considerations.     Accordingly,  in  such  cases,  (as 
has  been  asserted  by  a  high  authority  (d~),  courts  of  law  possess  no 
jurisdiction.     But  the  privilege  does  not  extend  beyond  the  walls  of 
the  house  to  which  the  member  belongs ;  and  a  peer,  who  publish- 
es (e),  libellous  matter  in  the  public  prints,  as  having  constituted  part 
of  his  speech  in  parliament,  is  as  open  to  an  action  or  prosecution 
as  any  private  individual  [1]. 

(a)  See  Preliminary  Discourse.  Rights.     1  W.  &  M.  st.  2.  c    2.  See  1  Bl. 

(b)  1  Esp.  R.  226.  C.  164* 

(c)  By  4  Hen.  c.  8.  members  of  parlia-  (d)  Lord  Kenyon,  in  the  Kjpg  v.  Lord 
ment  are  protected  from  all  charges  against  Abingdon.     1  Esp.  Rep.  226. 

them  for  any  thing  said  in  either   house.         (e)  R.  v.  Lord  Abingdon,  1  Esp.  R.  226. 
And  this  is  further  declared  in  the  Bill  of    R.  v.  Creevy,  1  M.  &  S.  273. 

[1]  By  the  Constitution  of  the  United  States,  Art.  1,  §  7,  it  is  ordained  that  for  any 
speech  or  debate  in  either  house,  the  senators  and  representatives  in  congress,  shall  not 
be  questioned  in  any  other  place;  and  a  similar  provision  is  to  be  found  in  the  constitu- 
tions of  Tuost  of  the  states  of  the  Union  in  respect  to  the  members  of  the  state  legisla- 
tures. 

*  See  Coffin  v.  Coffin,  4  Mass.  R.  1. 


JUDICIAL  PROCEEDINGS.  240 

The  same  rule,  as  to  impunity,  suggested  and  governed  by  similar 
principles,  applies,  to  judges,  jurors,  and  witnesses,  in  respect  of  any 
thing  published  by  them  in  the  conrse  of  a  judicial  proceeding. 

Certain  charges  (/).  having  been  preferred  by  the  plaintiff 
against  an  officer  of  his  own  regiment,  the  court  martial,  after  ac- 
quittal, subjoined  the  following  declaration  : 

"The  court  cannot  pass,  without  observation,  the  malicious  and 

groundless    accusations    that  have  l a    produced   by  Captain  J. 

against  an  officer  whose  character  has  daring  a  long  period  ofservi 
been  so    irreproachable  as  Colonel   Stewart's:    and  the 
court   do   unanimously    declare,   that    the    'conducl    of        *241    ] 
Captain  J.  in  endeavouring   falsely   to   calumniate    the 
character  of  his  commanding  officer,  is  most  highly  injurious  to  the 
good  of   the  service."     For    this  the  plaintiff   brought  his  action 
against  Sir  J.  Moore,  the  president  of  the  court  martial.     Upon 
the  trial  of  the  cause  before    Sir  J.  Mansfield,  C.  J.  it  appear- 
ed, that  the  supposed    libel    formed    part  of   the  opinion  of   the 
court,  delivered  by  the  defendant  to  the  Judge  Advocate,  for  the 
purpose  of  being  submitted  to  the  king,  and  immediately  followed 
the  opinion  of  the  court  martial ; — "  that  he,  the  aforesaid  Colonel 
Richard  Stewart,  is  not  guilty  of  either  of  the  charges,  and  the 
court  do  most  fully  and  honorably  acquit  him." 

The  plaintiff  was  nonsuited. 

And  afterwards  a  new  trial  was  refused,  on  the  ground  that  the 
words  complained  of  formed  part  of  the  judgment  of  acquittal.  [1] 

So  it  is  held,  that  no  presentment  (#•),  by  a  grand  jury  ran  be  a 
libel,  not  only  because  persons  who  are  supposed  to  be  returned 
without  their  own  seeking,, and  arc  sworn  to  act  impartially,  shall 
be  presumed  to  have  proper  evidence  for  what  they  do ;  but  also, 
because  it  would  be  of  the  utmost  ill  consequence  in 
any  way  to  discourage  *thcm  from  making  their  inquiries  |  *242  ] 
with  that  freedom  and  readiness  which  the  public  good 
requires. 

( /*)  2  N.  R.  341.  \;itions  of  the  court  in  Johnson  v.  Button, 

(</)  Bac.  Ab.  tit.  LibeL  455.     Mo.  627.     1  T.  EL 
Haw.  P.  C.  c.  73.  s.  8.    See  also  the  obaer- 


[1]  In  another  case  of  an  action  for  an  alleged  libel,  contained  in  a  report  of  a  milita- 
ry court  of  iuquiry  appointed  to  investigate  charge!  against  the  plaintiff  :  It  wafl  held 
that  the  report  was  a  privileged  communication,  and  could  not  properly  be  received  in 
evidence.  Home  v.  Bentinck,  4  Moore  503;  8  Price  226  B.  C.  See  note  to  the  report 
of  this  case  in  8  Price,  p.  244. 

22* 


242  CIVIL  REMEDY— OCCASION. 

Several  of  the  authorities  in  the  books  cited  relate  to  cases  of 
criminal  prosecution,  but  the  reason  and  principles  are  equally 
forcible,  when  applied  to  a  civil  action,  the  same  policy  in  both  cases 
opposes  itself  to  the  calling  in  question  the  motives  of  the  parties. 
Witnesses,  like  jurors  appear  in  court  (/*),  in  obedience  to  the 
authority  of  the  law,  and  therefore  may  be  considered,  as  well  as 
jurors,  to  be  acting  in  the  discharge  of  a  public  duty  ;  and  though 
convenience  requires  that  they  should  be  liable  to  a  prosecution  for 
perjury  committed  in  the  course  of  their  evidence,  or  for  conspiracy 
in  case  of  a  combination  of  two  or  more  to  give  false  evidence,  they 
are  not  responsible  in  a  civil  action  for  any  reflections  thrown  out  in 
delivering  their  testimony. 

The  plaintiff  brought  an  action  (i),  against  one  L.,  and  the  de- 
fendant being  produced  as  a  witness  at  the  trial,  gave  evidence  that 
the  plaintiff  was  a  common  liar,  and  so  recorded  in  the  Star  Cham- 
ber ;  by  reason  whereof  the  jury  gave  the  plaintiff  small 
[  *243  ]  damages.  After  verdict  for  the  *plaintiff  for  this  alleg. 
ed  slander,  it  was  moved  in  arrest  of  judgment,  that  the 
action  did  not  lie ;  for  if  it  did,  every  witness  might  be  charged 
upon  such  a  suggestion,  and  judgment  was  given  for  the  defend- 
ant (/i). 

With  respect  to  petitioners  in  parliament  (/),  and  suitors  or  pros- 
ecutors in  courts  of  law,  it  has  been  held,  that  on  proceeding,  ac- 
cording to  the  regular  course  of  justice,  will  make  the  complaint 
amount  to  a  libel,  so  as  to  render  the  party  criminally  liable,  on  the 
ground  that  it  would  be  a  great  discouragement  to  suitors  to  subject 
them  to  public  prosecutions  in  respect  of  their  applications  to  a 
court  of  justice ;  and  that  the  chief  intention  of  the  law,  in  pro- 
hibiting persons  to  revenge  themselves  by  libels  or  any  other  private 
manner,  is,  to  restrain  them  from  endeavoring  to  make  themselves 
their  own  judges,  and  to  oblige  them  to  refer  the  decision  of  their 
grievances  to  those  whom  the  law  has  appointed  to  determine 
them  (m). 

(h)  See  2  Inst.  228.     2  Roll.  Rep.  198.  the  crime  of  murder.— See  Leach's  C.   C. 

Pal.  144.  1  Vin.  A.  387.  Cro.  Eliz.  230.  L.  52.     Foster  130,  131. 

(i)  Harding  v.  Bulman.     Brownlow  2.         (Z)  See  the  resolution  of  the  House  of 

Hutt.  11.  Commons   in   the  case  of  Kemp.  v.  Gee,  9 

(/c)  It  has  been  doubted,  (not  much  to  Feb.  8.  W.  3.     See  post  p.  245. 
the  credit  of  the  law),  whether  a  precon-         (m)  Dyer,  285.     2   Ins.   228.    2   Buls. 

certed  scheme   for  taking  away  the  life  of  269.     Godb.   340.   Pal.   145.   188.     Vent, 

another  by  false  evidence,  for  the  sake  of  23.   Haw.   PI.   C.  c.  73.  s.  8.     3  Bac.  Ab. 

obtaining  a  statutable  reward  upon  convic-  499.     3  Lev.  169.     4.  Rep.  14. 
tion,  amounts,  when  carried  into  effect,  tb 


JUDICIAL  PROCEEDINGS.  248 

*  And  the  same  reasons  oppose  themselves  to  allowing        '-11  j 
an  action  to  be  maintained,  grounded  apoo  Buch  a  pro- 
eeediDg. 

In  the  case  of  Lake  v  King  (n),  the  plaintiff  declared  that  he 
was  a  doctor  of  laws,  and  vicar-general  to  the  Bishop  of  Lincoln  ; 
ami  then  set  forth  the  Libel  complained  of,  which  charged  him  with 
extortion,  vexation,  oppression,  and  other  misdemeanors  in  his  office. 

The  defendant  pleaded  thai  part  of  the  matter  was  true,  and  that 
therefore  he  procured  the  petition  (which  was  the  Libel  complained 
of)  to  be  engrossed,  and  delivered  to  the  committee  appointed  by 
the  commons  to  hear  and  examine  grievances  ;  and  that  afterwards, 
for  the  better  manifestation  of  the  grievances  contained  in  the  said 
petition,  lie  caused  the  same  to  be  printed,  and  delivered  to  the 
members  of  the  committee.  The  plaintiff  demurred.  It  was  agreed 
on  all  hands,  that  the  exhibiting  the  petition  to  the  committee  of 
parliament  was  lawful,  and  that  no  action  lay  for  it,  although  the 
matter  contained  in  the  petition  was  false  and  scandalous,  because 
it  was  in  the  summary  course  of  justice,  and  before  those  who  had 
power  to  examine  whether  it  was  true  or  false. 

*It  appears  that  this  case  (p)  was  much  considered,  245    | 

and  that  judgment  was  given  for  the  defendant,  after  it 
had  depended  twelve  terms,  by  Hale,  C.  J.  and  Twisden  and  Rains- 
ford,  Justices,  on  the  ground   that  it  was  the  order  and  course  of 
proceeding  in  parliament  to  print  and  deliver  copies  of  petitions,  of 
which  the  court  would  take  notice. 

But  it  was  held  that  to  have  distributed  the  printed  copies  to  any 
but  members  of  parliament  would  have  been  actionable. 

And  that,  in  general,  where  the  printing  was  not  warranted  by 
the  necessity  of  so  great  a  number  of  copies,  to  print  them  would 
be  actionable  ( />)  ;  but  that,  in  the  principal  case,  the  printing  them 
(which  is  a  publishing  of  them  to  the  printers  and  compositors,) 
was  not  so  great  a  publication  as  to  have  so  many  copies  transcribed 
by  several  clerks. 

It  appears  to  have  been  urged  in  favor  of  the  plaintiff,  that  the 
complaint  was  made  to  a  court  which  had  not  power  fco  redress  it. 
But  in  the  case  of  Kemp  v.  Gee  (</).  it  was  resolved  by  the  House 
of  Commons,   that    Gee  was  guilty   of  a  breach    of  privilege    in 

(/»)  1  Saun.  lot.  argument  in  the  ca«e  of  Athby  v.  WhiU. 

(o)  Lev.  1241.    IMod.  68.  Sid.  til.  Dig.  L.   L.   is.  1  Bilk.   1'.'.   3  Salk.     17. 

(p)  Sid.  414.  Holt  Rep.  624. 
(q)  9  Feb.  8  W.   3.     See  C.  J.   Holt's 


245  CIVIL  REMEDY— OCCASION. 

•246  ]    sueifig   Kemp  and   others   *for   a   libel,  supposed    to  be 
contained   in   a  petition  presented    to  the  house  for  a 
redress  of  grievances,  and  that  all  petitions  to  them  were  lawful,  or 
at  least  punishable  by  themselves  only  [1]. 

So  no  action  lies  for  any  allegation,  pleading,  or  other  matter  (r), 
published  in  the  usual  course  of  a  civil  or  criminal  proceeding  in 
courts  of  justice.  The  reason  for  which  is  ,  that  (.?)  if  actions  should 
be  permitted  in  such  cases,  those  who  have  just  cause  of  complaint 
would  not  dare  to  complain,  for  fear  of  infinite  vexation.  And,  as 
was  observed  by  Lord  Mansfield,  C.  J.  (£),  there  can  be  no  scandal 
if  the  allegation  be  material ;  and  if  it  be  not,  the  court  before 
whom  the  indignity  is  committed,  by  immaterial  scandal  may  order 
satisfaction,  and  expunge  it  out  of  the  record,  if  it  be  upon  the 
record. 

Thus   where  (w)  the   plaintiff   declared    that  the  de- 

[  *247  \     fendant,  *in  a  certain   affidavit   before   the  court,  had 

sworn  that  the  plaintiff  in  a  former  affidavit  had  sworn 

(r)  1  Roll.  33.        •  witnesses."     On  moti<5n  in  arrest  of  judg 

(s)  4  Coke,  14.  ment,  the  jury   having  by   their    -verdict 

(t)  2  Burr.  817.  found  the  words  to  be  false   and  malicious, 

(w)  Jlstley  v.  Young,  2  Burr.  817.     So  it  was  holden  by  the  court,  that  the  action 

where  in   an  action  on   the    case   by    A.  was   not   maintainable,   because  "  the  an- 

against  B.,    the   plaintiff  declared  that  he  swer  which  B.  made  to  the  affidavit   was  a 

took  his  oath  in  B.  R.  against  B.  of  certain  justification  in  law,  and   spoken  in  defence 

matters,    to   bind   him  to   his  good  behav-  of  himself,  and    in   a   legal    and  judicial 

ior  ;  and   thereupon   B.    said  falsely  and  way." — Roll.  Ab.  87.  pi.  4.     Sir  W.Jones, 

maliciously,    and    intending    to  scandalize  431.     Mar.  20.  pi.   45.     Cited  by  Mr.  J. 

the  plaintiff,  "  There  is  not  a  word  true  in  Holroyd  iu  Hodgson  v.  Scarlett,   1   B.  and 

that  affidavit,  and  I  will   prove  it  by  forty  A.  244. 

[1]  There  is  no  case  in  the  American  Reports  of  an  action  for  a  libel  supposed  to  be 
contained  in  a  petition  to  congress  or  to  the  legislature  of  either  of  the  states  ;  but  there 
are  numerous  cases  of  actions  for  libels  alleged  to  exist  in  petitions,  memorials  and  re- 
monstrances presented  to  the  appointing  power  of  the  state,  or  to  officers  possessing 
the  power  of  appointment  to,  or  removal  from  office.  The  principle  held  in  those  cases 
is  that  such  communications  are  prima  facie  to  be  considered  privileged,  i.  e.  the  in- 
dividuals presenting  them  are,  upon  principles  of  public  policy,  to  be  presumed  to  act 
innocently,  until  it  be  shown  by  the  party  complaining  of  having  been  slandered,  that 
they  were  actuated  by  express  malice.  In  accordance  with  this  principle  were  decided 
the  cases  of  Blanchard  v.  Thorn,  5  Johns.  R.  508;  Vanderzee  v.  McGregor,  12 
Wendell  545  :  Howard  v.  Thompson,  21  Id.  319  ;  O'Donaghue  v.  McGorern,  23  Id. 
26.  See  also  2  Serg.  &  Rawle,  23  ;  4  Id.  420  ;  3  Pick.  379  ;  1  Tyler  164.  2  IJ.  129 ; 
and  the  late  English  cases,  Woodward  v.  Lander,  6  Carr.  &  Payne,  518,  and  Blake  v. 
Pilford,  1  Moody  &  Robinson  198  ;  and  it  seems  that  no  action  will  lie  though  the  pe- 
tition be  presented  in  a  quarter  not  authorized  to  grant  its  prayer,  if  in  presenting  it 
the  parties  act  in  good  faith,  Fairman  v.  Ives,  5  Barn.  &  Aid.  647. 


JUDICIAL  PROCEEDINGS.  247 

falsely;  the  court  held  that  thifi  was  not  actionable,  for  that  in 
every  disput.-  in  a  court  of  justice,  where  one,  by  affidavit,  cbargea 
a  thing  which  the  other  denies,  the  charges  must  he  contradictory, 
and  there  must  be  affirmation  of  falsehood  ;  and  this  being  necessary 
in  a  legal  proceeding,  no  action  would  lie  fur  it. 

So  in  trespass  (a;),  if  the  defendant,  in  his  plea  of  justification, 
falsely  aver  that  the  plaintiff  was  a  bankrupt,  and  that  the  defend- 
ant had  a  commission  upon  tin-  Btatute,  by  rirtue  of  which  those 
goods  were  delivered  to  him  ;  yet  the  plaintiff,  for  the  words  cannot 
maintain  an  action. 

In  Weston \.  Dobniet  (//),  the  plaintiff  declared,  that  there  was 
a  suit  in  the  spiritual  court,  between  one  A.  and  the  defendant, 
wherein  A.  produced  the  now  plaintiff  asawitness;  that  the  de- 
fendant, having  a  day  given  to  except  against  the  witnesses,  put 
in  his  exceptions  in  writing,  alleging,  that  the  now  plain- 
tiff was  not  a  competent  witness,  and  'that  there  ought  [  *:248  ] 
not  any  credit  to  be  given  unto  him,  because  he  was  per- 
jured. Whereupon  the  plaintiff  (pending  the  suit)  brought  the  ac- 
tion for  this  scandal ;  but  the  whole  court  held  that  the  action  was 
not  maintainable,  because  the  proceeding  was  in  the  common  course 
of  justice,  and  not  ex  malitia. 

And  in  criminal  prosecutions,  it  seems  to  be  perfectly  well  es- 
tablished, that  no  action  will  lie  for  any  distinct  matter  disclosed  in 
the  course  of  such  a  proceeding,  but  that  the  party  must  seek  his 
remedy  for  a  malicious  and  groundless  prosecution,  i  Lther  by  writ 
of  conspiracy  or  by  a  special  action  on  the  case,  founded  upon  the 
whole  of  the  circumstances  ( :  ). 

Sir  Richard  Buckley  (a),  brought  an  action  against  Owen  Wood, 
for  exhibiting  a  bill  against  him  in  the  Star  Chamber,  and  charging 
him  with  several  matters  examinable  in  that  court ;  and  charging 
him  further,  that  he  was  a  main tainer  of  pirates  and  murderers, 
and  a   procurer  of  pirates  and   murderers,  which   offen  not 

determinable  in  the  Star  Chamber. 

And  it  was  resolved  by  the  whole  court,  that  for  any  matter  that 
was  contained  in  the  bill  that    was  examinable  in  -aid 
court,  no   action  lies,    'although   the  nutter  be  merely    [   "J  10 
alse,  because    it  was  in  the  course  of  justice ;  and  that 
this  agreed  with  the  judgment  beforegiven  in  Cutler  v.  Dixon  (6)  : 

(x)  Cro.  J.  J32.  (*)  BBLOom.  136.      LOMod   210,219. 

(y)  3  Bl.  Com.  126.     10  Mod.  210.  '219.       300.     Str.  G91. 
300.    Str  691.  («)  *  Co.  14.  (b)  Dyer,  286. 


249  CIVIL  REMEDY— OCCASION. 

But  it  was  also  resolved,  that  for  the  words  not  examinable  in  the 
Star  Chamber,  an  action  on  the  case  lies,  for  that  cannot  be  in  a 
course  of  justice  [1]  ;  and  that  if  such  a  matter  might  be  inserted 
in  bills  in  so  high  a  court  to  the  great  slander  of  the  parties,  and 
they  cannot  answer  it  to  clear  themselves,  nor  have  their  action  as 
well  to  clear  themselves,  as  to  recover  damages  for  the  great  in- 
jury and  wrong  done  them,  great  inconvenience  would  ensue. 

That  by  law,  no  murder  or  piracy  could  be  tried  by  bill,  but  by 
indictment  only ;  and  therefore,  that  the  defendant  had  not  only 
mistaken  the  proper  court,  but  the  manner  and  nature  of  the  bill 
had  not  any  appearance  of  a  suit  in  the  ordinary  course  of  justice. 

But  that  if  a  man  brought  an  appeal  of  murder  returnable  in  the 
common  pleas,  no  action  would  lie  ;  for,  though  the  writ  was  not 
returnable  before  competent  judges,  yet  it  is  in  the  nature  of  a  law- 
ful suit,  namely,  by  writ  of  appeal." 

The  first  part  (c),  of  this  resolution  has  been  frequently 
[  *250  ]    confirmed,  and  extends  to  all  proceedings  *in  the  regu- 
lar course  of  justice,  and  to  actions  for  scandalum  mag- 
natum  (d). 

The  defendant  (e)  brought  a  writ  of  forger  of  false  deeds  against 
Lord  Beauchamp :  and,  pending  the  writ,  Lord  B.  brought  an  ac- 
tion for  the  scandal.  The  defendant  justified  by  his  having  the  said 
writ  before.  Upon  demurrer,  the  justification  was  holden  to  be 
good,  and  out  of  the  intendment  of  the  law  and  statutes  of  slander. 

And  if  the  publication  be  made  in  the  course  of  a  judicial  pro- 
ceeding, it  does  not  appear  to  be  essential  to  the  justification  that 
the  defendant  strictly  observed  the  technical  mode  of  proceeding. 

The  plaintiff  declared,  that  he  made  an  affidavit  to  have  the  de- 
fendant bound  over  to  his  good  behavior  :  and  that  the  defendant, 
in  the  hearing  of  the  justices  and  officers  (/),  of  the  court  and 
others  present,  said,  "  There  is  not  a  word  of  truth  in  that  affida- 
vit, and  I  will  prove  it  by  forty  witnesses."  And  it  was  held  that 
the  words  were  justifiable,  being  in  a  judicial  way  [2]. 

(c)  2  Inst.  228.  Roll.  Ab.  87.  pi.  4.  (e)  Lord  Beauchamp  v.  Sir  R.  Croft, 
Sir  W.  Jon.  431.  Dyer  285. 

(d)  2Buls.  269.2  Burr.  803.  "3  Bac-  (/)  Jo.  341.  Mar.  20.  Boulton  v. 
Ab.  492.  Clapham. 

[1]  See  post,  p.  252. 

[2]  See  comments  of  Chancellor  Walworth  on  the  case  of  Boulton  v.  Clapham,  in 
Hastings  v.  Lusk,  22  Wendell  419.  See  also  Kean  v.  McLaughlin,  2  Serg.  & 
Rawle  470. 


JUDICIAL  PROCEEDINGS. 


2.30 


And  the  same  rule  obtains  where  application  is  made  in  the  usual 
course  to  a  magistrate  or  other  peace  officer. 

The  defendant  went  to  a  justice  (g  I,  of  the  peace  'for    [  "2.31  ] 
a  warrant  against  the  plaintiff,  for  stealing  his  ropes. 
The  justice  said,  " Be  advised,  and   look  what  yon  do:"  and  the 
defendant  replied,  "  I  will  charge  him  with  Hat  felony,  for  stealing 
my  ropes  from  my  shop." 

The  court  agreed,  that  these  words  being  spoken  to  a  justice  of 
the  peace,  when  he  came  for  his  warrant,  which  was  lawful,  Mould 
not  maintain  an  action,  for  if  they  could,  no  other  would  com 
justice  of  the  peace  to  inform  him  of  a  felony  [1].  But  where  the 
question  arose,  whether  the  clerk  to  a  magistrate  could  be  called  on 
as  a  witness,  to  state  whether  he  had  not,  by  the  defendant's  orders, 
written  an  extra-judicial  affidavit  (which  was  charged  in  the  declar- 
ation to  be  a  libel),  and  delivered  it  to  the  magistrate,  Wood,  B. 
ruled  that  the  question  tended  to  criminate  the  witness,  though  ho 
acted  merely  as  a  clerk  (//). 

*By   the  latter  resolution,  in   the  case  of  Buckley  v.     [    *252  j 
Wood  (i),  the  court  decided  that  scandalous  matter  would 


(g)  Hutt.  113.     Ram  v.  Lamley. 

(h)  Moloney  v.  Bartlnj,  3  Camp.  210. 
The  learned  Baron  observed,  "  I  think  tiie 
questions  proposed  tend  to  criminate  the 
witness.  The  affidavit  which  he  is  sup- 
posed to  have  copied  and  delivered  to  the 
magistrates  is  alleged  by  the  plaintiff  to  be 
libellous,  and  it  was  extra-judicial;  there- 
fore, all  concerned  in  writing  and  publish- 
ing it  are  in  point  of  law  guilty  of  a. mis- 
demeanor. Had  the  affidavit  been  made  in 
the  course  of  a  judicial  proceeding,  no  in- 
dictment nor  action  could  have  been  main- 
tained against  tin-  clerk,  whatever  might 
have  been  the  nature  of  its  contents.  But 
the  nffi  la\  it  being  voluntary  and  extra- 
judicial, I  cannot  take  notice  that  the  per- 
son, before  whom  it  is  pretended  to  be 
sworn,  was  a  magistrate,  or  allow  any 
privilege  to  those  who  were  employed  in 
framing  it.  The  witness  is  in  the  common 
situation  of  a  person  who  has,  without  au- 


thority written  a  copy  of  a  libel  and  de- 
livered it  to  a. third  person.  If  his  master 
or  if  the  magistrate,  had  ordered  him  to  do 
so,  this  would  have  been  no  justification. 
It  has  been  held,  that  the  mere  delivery  of 
a  libel  to  a  third  person,  by  one  conscious 
of  its  contents,  amounts  to  a  publication 
and    is    an    indictable   off  I  I  ike  the 

question  to  be.  whether  the  witni 
not  concerned  in  writing  the  affidavit,  and 
delivering  it  to  the  magistrate,  and  this  I 
am  of  opinion  he  is  not  bound  to 
So  in  the  cuse  of  J/'i;  ggor  v.  Thwaita, 
8  1>.  &  C.  24,  it  was  hell  to  be  no  answer 
to  the  action,  that  the  matter  published  by 
the  defendants  was  a  ooi  I  what 

actually    took    place   in    the   )  » 

ite,  inasmuoh  as  it  appeared  that 
he  v.  is  not  then  called  on  to  act,  either  in  a 
judicial  or  magisterial  capacity. 

(i)    1  Co.  14. 


[1]  An  action  of  slander  does  not  lie  for  a  charge  of  a  criminal  ollenec  made  to  a 
magistrate  on  which  a  warrant  issues,  although  the  accused  be  discharged  after  examin- 
ation, Schoc/c  v.  McChesney,  2  P.  A.  Browne's  It.  6.  App. 


252  CIVIL  REMEDY— OCCASION. 

be  actionable,  if  exhibited  by  means  of  an  improper  process,  and  in 
a  court  which  had  no  jurisdiction  over  the  subject  matter  ;  but  it 
plainly  appears  that  the  court  held, .that  both  impropriety  of  process 
and  want  of  jurisdiction  must  concur  to  deprive  the  defendant  of  his 
justification  ;  for  it  was  expressly  said,  that  the  bringing  a  writ  of 
appeal  of  murder  in  the  Common  Pleas  would  not  be  actionable ; 
since,  though  they. wanted  jurisdiction  in  the  particular  instance,  yet 
that  the  proceeding  by  writ  of  appeal  was  in  the  nature  of  a  lawful 

suit. 
[  *253  ]        *In  Lake  v.  King-  (Zc),  the  court  said,  that  notwith- 
standing what  was  reported  in  Buckley's  case,  it  was 
held  that  want  of  jurisdiction  will  not  make  a  libel,  for  it  is  only  the 
error  of  counsel. 

Powell,  J.  (/),  is  reported  to  have  said,  "  I  have  heard  my  Lord 
Hale  say,  that  for  putting  matters  in  a  bill,  of  which  the  court  hath 
no  cognizance,  action  does  not  lie  against  the  plaintiff,"  though  in 
the  fourth  report  it  is  laid  down  otherwise. 

Serjeant  Hawkins  (hi),  in  his  Pleas  of  the  Crown,  observes,  "  It 
has  been  holden  by  some,  that  no  want  of  jurisdiction  of  the  court, 
to  which  such  a  complaint  is  exhibited,  will  make  it  a  libel,  because 
the  mistake  of  the  court  is  not  imputable  to  the  party,  but  to  his 
counsel.  Yet,  if  it  shall  manifestly  appear,  from  the  whole  circum- 
stances of  the  case,  that  a  prosecution  is  entirely  false,  malicious,  and 
groundless,  and  commenced  not  with  a  design  to  go  through  with  it 
but  to  expose  the  defendant's  character  under  a  shew  of  legal  pro- 
ceeding, I  cannot  see  any  reason  why  such  a  mockery  of  public  jus- 
tice should  not  rather  aggravate  the  offence  than  make  it  cease  to 
be  one,  and  make  such  scandal  a  good  ground  of  indictment  at  the 
suit  of  the  king,  as  it  makes  the  malice  of  the  proceeding 
[  *254  ]  *a  good  foundation  of  an  action  on  the  case,  at  the  suit 
of  the  party,  whether  the  court  had  jurisdiction  or  not." 

From  these  authorities  it  may  be  collected  generally,  that  an  ac- 
tion of  slander  cannot  be  maintained  for  any  thing-  said,  or  other- 
wise published.,  either  by  a  judge,  a  parly  (w),  or  a  witness,  in  the 
due  course  of  a  judical  proceeding,  whether  criminal  or  civil,  though 
for  a  malicious  and  groundless  prosecution,  an  action,  and  perhaps 
an  indictment,  may  be  supported,  founded  on  the  whole  proceed- 
ing (o). 

(Zr)  1  Vin.  Ab.  389,  notes  to  pi.  67.  (n)  As  to  the  case  of  an  advocate,  vide 

(0  2  Lut.  1571.  infra, 
(wi)  PL   Cr.  73,  s    8.     See  also  Serj.         (0)  vide  infra. 
William's  note,  1  Saund  132. 


JUDICIAL  PROCEEDINGS.  264 

It  must,  however,  be  recollected,  that  the  justification  does  not 
extend  to  any  publishing  which  the  usual  course  of  judicial  proceed- 
ing does  not  warrant.  Thus,  in  Lake  7.  King,  the  Lrreat  doubt  was 
not  whether  the  exhibiting  the  petition  to  parliament  was  lawful  or 
not,  but  whether  the  defendant  was  warranted  in  printing  and  pub- 
lishing it  in  the  manner  alleged  ( p )  in  his  plea. 

Ami  so,  in  the  case  of  Hare  v.  Mt  H>  r  ( q  >,  it  was  adjudged  to  be 
lawful  to  presenl  a  petition  to  the  queen,  though  reflecting  upon  the 
character  of  the   plaintiff;  but  deemed  to  lie  actionable 
afterwards 'to  divulge  the  contents  to  the  disgrace  of       '-■">•">  ] 
the  person  intended. 

And  though  it  be  matter  of  public  policy,  that,  the  causes  for  the 
exercise  of  authority  in  the  dismissal  of  an  officer  Bhould  be  made 
known,  yet  it  seems  that  such  a  publication  must  be  limited  accord- 
ing to  the  naturc^of  the  official  duty  of  the  defendant. 

Thus  in  the  case  of  Oliver  v.  Bentinck  (?<)>  although  it  was  held 
that  the  defendant,  being  Governor  in  Council  of  Fort  St.  G 
would  be  justified  in  publishing,  according  to  the  fact,  that  the  ( '<  >urt 
of  Directors  had  resolved  to  dismiss  the  plaintiff  from  the  service 
for  a  gross  violation  of  the  trust  reposed  in  him  as  commanding  offi- 
cer of  the  Molucca  Islands,  and  that  he,  the  defendant,  had  been 
ordered  to  erase  his  name  from  the  army  list,  yet  it  was  held,  that  it 
was  essential  to  the  defendant's  plea  to  show  on  what  account  it  was 
part  of  his  duty  to  publish  the  alleged  libel  (x). 

(p)  1  Saund.  132.  Lawrence,  J.  said,  "  I  suppose  the  plain- 
er) 3   Lev.    169.     See  also  4  Rep.  14.  tiff's  object  was  to  lay  before   a  jury  the 
See  R.  v.  Crccnj,  1  M.  \  S.  -J73,  and  the  circumstances  of  this  genl  nduct, 
ensuing  chapter.                                    .  by  a  question  to  be  raised  on  this  r 
(u)  o  Taunt.  456.  that  could  never  be  permitted  in  this  form; 
(x)   And   for  want   of  showing  this,  the  but  the  plea  IS    certain!.                     forth* 
plea  was  held   to   be   defective,  but  leave  order  is  issued  to  the  governor  in  oounoQ; 
was  given  to  amend.  and    it  is  not  Bhown  that  what   the  defend- 
Mansfield,  C.  J.   observed,    that  it  was  ant  did,  he  did   as  governor  in  council;  lie 
better  for    the   company,  for    the  country,  only  pleads  that  he  did  it  as  g 
and  for  the  plaintiff  himself'  (according  to  d< 

the  report,)  that  the  cause  of  his  dismissal  this  in  his  individual  capacity  as  governor, 
should  be  stated,  than  that   it  should  be        Chambre,  J.  "  The  only  doubt  I  have  is, 

supposed  that  the  East  India  Company  did  that  the  on  what  ac- 

it  suo  arbilrio.  count  it  became  an  act  in  the   execution  of 

Heath,  J.  observed,  that   it  was  the  con-  the  defendant's  doty  to  publish   this.     I'm 

stant  practice  here,  that  when  a  delinquent  we  Boppose  that   I  it  t"  publish 

has  been  brought    to    a   court  martial,  the  it     in    hind-bills    and    newspapers  :     The 

commander  in  chief  has  directed  the  sen-  only  authority  he  shows  i>  t':-  erasing  tin 

tencc  to  be  read  at  the  head  of  every  regi-  name  from  the  army  list,  nut  for  the  publi- 

ment.  cation. 

Vol.  I.  23 


255  CIVIL  REMEDY— OCCASION. 

*Where,  however,  a  party  claims  title  to  an  estate,  to 
[  *256  ]  the  injury  of  the  real  owner,  though  he  does  it  extra- 
judicially, yet  is  he  not  liable  in  an  ordinary  action  for 
slander  of  title,  but  the  plaintiff  must  recover,  if  at  all,  by  means  of 
a  special  action  on  the  case,  shewing  that  there  was  no  color  or 
probable  cause  for  the  claim  (y). 

(y)  Sir  G.  Gerard  v.  Dickenson,  4  Co.  28.     Goulding  v.  Herring,  infra,  290. 


CHAPTER    XI. 


Parliamentary  and  Judicial  Reports. 

'Upon  the   question,  how  far  the  reporting  of  parlia- 
mentary proceedings  can  be  deemed  libellous  some  dif-     [  *257 
fcrence  of  opinion  has  prevailed. 

"  Upon  an  information  against  the  defendant,  for  publishing  (a) 
"  Dangcrfield's  Narrative,"  he  pleaded  that  he  was,  at  the  time  of 
the  publication,  Speaker  of  the  House  of  Commons,  and,  as  such, 
had  a  right  to  publish  the  votes  and  acts  of  the  house,  and  that  the 
narrative  was  printed  and  published  as  parcel  of  the  proceedings  : 
and  notwithstanding  this,  the  court  gave  judgment  for  the  king  (6). 

But  in  the  King-  v.  Wright  (e),  an  application  was  made  to  the 
Court  of  King's  Bench  to  grant  a  criminal  information  against  the 
defendant  for  printing  and  publishing  a  libel  on  an  indi- 
vidual. Upon  *the  defendant's  affidavit,  it  appeared  that  [  *258  j 
the  charge  complained  of  was  a  paragraph  contained  in 
the  report  of  the  Committee  of  Secrecy  of  the  House  of  Commons, 
a  literal  copy  of  which  he  had  published. 

After  hearing  counsel  on  the  part  of  the  applicant,  the  information 
was  refused,  Lord  Kenyon,  C.  J.  observing,  "  As  this  was  a  true 
copy  of  the  report  of  the  House  of  Commons,  1  think  there  was  no: 
the  least  pretence  for  the  motion  ;  the  application  supposes  that  the 
publication  is  a  libel,  but  it  is  impossible  to  admit  that  the  proa 
ing  of  cither  of  the  houses  of  parliament  Is  a  libel. 

"  The  case  of  Sir  W.  Williams,  which  was  principally  relied  on, 
happened  in  the  worst  of  times,  but  that  has  no  relation  to  the  pres- 
ent case.     There  the  publication  was  the  paper  of  a  private  indi- 

(a)  R.  v.  Williams,     2  Show.   R.  471.  Kenyon,  C.  J.  and  Grose,  J.  giving  judg. 

Comb.  18.  See  Sir  R.  Atkyns  on  the  Power  ment  in  the  King  v.  Wright,  8  T.  R.  'J'J3. 
of  Parliament.  (c)  8  T.  R.  '2M. 

(6)  This  case  was  reprobated  by  Lord 


258  CIVIL  REMEDY— OCCASION. 

vidual,  and  under  pretence  of  the  sanction  of  the  House  of  Com- 
mons, an  individual  published  ;  but  this  is  a  proceeding  by  one 
branch  of  the  legislature,  and  therefore  we  cannot  inquire  into  it." 

Grose,  J  .  said,"  On  looking  into  the  judicial  proceedings  of  this 
court,  I  find  no  instance  of  such  an  information  as  the  present ;  the 
case  of  Sir  W.  Williams  is  most  like  this  but  it  must  be  remembered, 
that  that  was  declared  by  great  authority  to  be  a  disgrace  to  the 

country." 
[  *259  ]         *Lawrence  J.  observed,  "  It  has  been  said,  that  the 

publication  of  the  proceedings  in  the  courts  of  justice, 
when  reflecting  on  the  character  of  an  individual,  is  a  libel ;  to  sup- 
port which  position,  the  case  of  Waterfield  v.  the  Bishop  of  Chi- 
chester has  been  cited  (d)  ;  but,  on  examining  that  case,  it  appears 
that  the  charge  there  was,  that  the  plaintiff  had  not  published  a 
true  account.  The  proceedings  of  courts  of  justice  are  daily  pub- 
lished, some  of  which  highly  reflect  on  individuals,  but  I  do  not 
know  that  an  information  was  ever  granted  against  the  publisher  of 
them.  Many  of  these  proceedings  contain  no  point  of  law,  and 
are  not  published  under  the  authority  or  the  sanction  of  the  courts, 
but  they  are  printed  for  the  public.  Not  many  years  ago,  an  ac- 
tion was  brought  in  the  Court  of  Common  Pleas  by  Mr.  Curry  (e), 
against  Walter,  the  proprietor  of  the  Times,  for  publishing  a  libel 
in  the  paper  of  "  The  Times  ;"  which  supposed  libel  consisted  in 
merely  stating  a  speech  made  by  a  counsel  in  this  court,  on  a  motion 
for  leave  to  file  a  criminal  information  against  Mr.  Curry.  L.  C. 
J.  Eyre,  who  tried  the  cause,  ruled  that  this  was  not  a  libel,  nor 
the  subject  of  an  action,  it  being'  a  true  account  of  what  had  pass- 
ed in  this  court ;  and  in  this  opinion  the  Court  of  Common  Pleas 

afterwards,  on  a  motion  for  a  new  trial,  all  concurred, 
[  *260  ]     though  some  of  the  *judges  doubted  whether  or  not  the 

defendant  could  avail  himself  of  that  defence  on  the 
general  issue  :  though  the  publication  of  such  proceedings  may  be 
to  the  disadvantage  of  the  individual,  the  having  these  proceedings 
made  public  more  than  counterbalances  the  inconveniences  to  the 
private  persons,  whose  conduct  may  be  the  subject  of  such  proceed- 
ings. The  same  reasons,  also,  apply  to  the  proceedings  in  parlia- 
ment ;  it  is  of  advantage  to  the  public  and  even  to  the  legislature 
besides,  that  true  accounts  of  their  proceedings  should  be  generally 
circulated,  and  they  would  be  deprived   of  that  advantage  if  no 

(d)  2  Mod.  118.  (e)  1  B.  &  P.  525. 


JUDICIAL  REPORTS.  260 

person  could  publish  their  proc  without  being  punished  as 

a  libeller." 

"  Though,  therefore,  the  defendant  was  not  authorized  by  the 
Eonse  of  Commons,  to  publish  the  report  in  question,  yet  as  he  only 
published  a  true  copy  of  it,  I  am  of  opinion  that  the  rule  ought  to 
be  discharged." 

This  case  calls  for  Beveral  observations.     En  the  first  place  the 
only  question  before  the  court  was.  whether  under  the  circumsl 
they  would  permit  a  criminal  information  to  be  filed,  a  matter  which 
is  usually  regarded  as  discretionary.     In  the  next  place  it  ie  to  be 
remarked  that,  although,  the  Learned  judges  gave  reasons  for  refus- 
ing the  rule,  which  if  well  founded  would  go  to  the  general  e 
of  sanctioning  all  true  reports  of  parliamentary  and  ju- 
dicial proceedings;  yet  thai,  according  'to  several  late        '_    1 
decisions,  the  legal  privilege  of  publishing  such  proceed- 
ings  Is   subject   to  very    considerable    limitations.     And,  that  the 
authority  of  this  case  to  so  great  an  extent  has  been  much 
tioned  (/). 

Notwithstanding  the  analogy  assumed  to  exist  between  the  pub- 
lication of  parliamentary  proceedings  and  judicial  reports,  there 
seems  to  be  a  wide  and  manifest  distinction  between  them.  With 
respect  to  many  parliamentary  proceedings,  so  far  is  it  from  being 
legally  essential  to  the  interests  of  the  public  that  they  should  lie 
divulged,  that  a  party  who  publishes  them  is  in  strictness  guilty  of 
a  breach  of  privilege.  Courts  of  justice,  on  the  other  hand,  are 
open  to  all,  the  common  law  of  the  land,  is  to  be  Learned  principally 
by  attention  to  the  practice  and  proceedings  of  such  court-,  and 
therefore  it  is  of  essential  importance  to  the  public  that  such  ] pro- 
ceedings should,  to  a  great  extent  at  least,  be  communicated  to  all. 

And  the  court  in  holding,  that  no  parliamentary  proceeding  can 
be  deemed  libellous,  seem  to  have  regarded  the  subject 
too  abstractedly,  and  without  'reference  to  the  time,  occa-    [  *2 
sion,  and  circumstances  attending  the  publication. 

The  question  whether  a  particular  publication  shall  be  deemed  to 
be  illegal  or  even  criminal,  may  depend  not  merely  on  the  matter 
published,  but  on  the  occasion  and  circumstances  of  the  publishing. 
It  frequently  happens,  that  the  publication  of  that  which  is  injurious 

(/")  Seethe  observations  of  Lord  Ellen-     Carlile,  8  B     -  A.  17.      I.       -  r.  Clement, 
borough,  C.  J.  aud  Grose,  J.    in   Stiles   v.     8  B.  .v  A.  702.     Flint    p.  Pike,  I  B.  .V  C. 
Nokes,  7  East  493.     R.  v.  Fisher,  •-'  Camp.     tT;:- 
563.     R.   v.   Fleet,   1    13.   &  A.  37'J.  U.  v. 
23* 


262  CIVIL  REMEDY— OCCASION. 

is  not  justifiable,  although  the  original  publication  was  privileged 
and  sanctioned  by  the  particular  occasion  and  circumstances  (g-) . 
Thus  in  Lord  Abingdon's  case,  it  was  held  that  a  peer  who  publishes 
libellous  matter  in  .the  public  prints,  as  having  constituted  part  of 
his  speech  in  parliament,  is  as  open  to  an  action  or  prosecution  as 

any  private  individual  (A). 
[  *263  ]       And  in  the  case  of  the  King  v.   Creevy  (i),  it  *was 

held,  that  a  member  of  the  House  of  Commons  was  liable 
to  be  convicted  on  an  indictment  for  a  libel,  in  publishing  in  a  news- 
paper the  report  of  a  speech,  delivered  by  him  in  the  house,  which 
contained  libellous  matter  upon  an  individual. 

On  principles  of  public  convenience  the  ordinary  rule  is,  that  no 
action  can  be  maintained  in  respect  of  fair  and  impartial  reports  of 
a  judicial  proceeding. 

This  rule  is  subject  to  several  natural  and  necessary  limitations  ; 
first,  as  to  the  subject  matter  of  the  report,  and  secondly,  as  to  the 

matter  in  which  the  proceeding  is  reported. 
[  *264  ]        *Fjrst  as  to  the  subject  matter.    As  the  privilege  in  such 

cases  is  founded  upon  grounds  of  public  policy  and  con- 
venience, it  ceases  where  the  nature  of  the  investigation  is  such, 
that  to  publish  it  would  obviously  be  offensive  and  injurious  to  the 
public,  as  where  it  involves  blasphemous  or  indecent  matter.     Where 

(g)  See  Lake  v.  King,   1   Saund.   131  malice,  unless  any  thing  can  be  drawn 

supra.     There  it  was  held  that   the  print-  from  the  circumstances  attending  the  pub- 

ing  a  petition  to  the  House  of  Commons,  lication  to  rebut  that  inference,   and  left 

for  the  use  of  the  members  of  that  House,  them  to  say  whether  the  circumstances  did 

was  justifiable,  because  that  was  according  rebut  that  inference;  informing  them   that 

to  the  ordinary  course  of  proceeding,  but  in  point  of  law,  the  circumstances  of   its 

that  any  other  publication  not  authorized  being  a  publication  of  a  speech  delivered 

by  parliamentary  practice  would  have  been  by  a  member  of  the  House  of  Commons, 

illegal.     So  in  the  case  of  Flint  v.  Pike,  4  did  not  rebut  it.     The  jury  found  the  de- 

B.  &  C.  473,  it  was  held  that  it  was  not  fendant  guilty,  and  the  Court  of  King's 

justifiable  to  publish  the  speech  of  a  coun-  Bench  afterwards  held  that  the  conviction 

sel  reflecting  on  the  character  of  an  indi-  was  proper.     Lord  Ellenborough  in  refer- 

vidual,  although  no  action  was  maintaina-  ence  to  the  observations  of  the  court,  in  the 

ble  against  the  counsel.  case  of  The  King  v.  Wright,  said  he  should 

(A)  R.  v.  Lord  Abingdon,  1  Esp.  C.  '226.  hesitate  in  pronouncing  it  to  be  a  proceed- 

(i)  1  M.  &  S.  273.     Le  Blanc,  J.  at  the  ing  in  parliament.    He  also  observed  that 

trial,  in  summing  up  to  the  jury,  informed  when  it  became    necessary  to  discuss  the 

them   that  they  were  to  consider,  whether  case  of   Curry  v.  Walter,  he  should    say, 

the  publication     tended    to     defame     the  that  the  doctrine  there  laid  down  must  be 

prosecutor;     that     he    was     of    opinion,  understood  with  very  great  limitations,  and 

that  it  did,   but    left    the     question     to  that  he  should  never  fully  assent  to  the  un- 

them.     He  further  stated   that  where  the  qualified  terms  attributed  in  the  report  of 

publication   is   defamatory,  the  law  infers  that  case  to  Eyre,  C.  J. 


JUDICIAL  REPORTS.  264 

llie  very  object  of  the  inquiry  was  to  protect  the  interests  of  religion, 
morality,  decency,  and  good  order,  by  repressing  impious,  blasphe- 
mous and  obscene  or  Beditions  publications,  it  would  not  only  be  im- 
politic but  weak  and  absurd  to  allow  the  Bame  matters  to  be  after- 
wards published  with  impunity  ae  parcel  of  the  judicial  proc lin'_r. 

In  the  case  of  The  BTing*Y.  Cariile  (K),  a  criminal  information 
was  granted  against  Mary  Cariile,  for  a  libel,  entitled  the  mock  trial 
of  Mr.  Cariile,  but  which  contained  a  correct  account  of  what  bad 
taken  place  apon  that  trial,  in  the  course  of  which  the  whole  of 
Paine's  Ige  of  Reason  bad  been  read.  And  the  court  held,  that 
though,  as  a  general  position,  it  was  certainly  lawful  to  publish  the 
proceedings  of  courts  of  justice,  yet  that  it  must  be  taken  with  this 
qualification,  that  what  is  contained  in  the  publication  musl  be 
neither  defamatory  of  an  individual,  tending  to  excite  disaffection, 
nor  calculated  to  offend  the  morals  of  the  people  ;  for  if  its  contents 
were  calculated  to  produce  such  effects,  instead  of  dis- 
seminating 'useful  knowledge,  it  would  produce  great  [  '265  ] 
mischief  (/). 

The  publication,  also,  of  ex-parte  proceedings  in  criminal  cases 
is  not  only  privileged  by  the  law,  but  is  regarded  as  a  great  mis- 
demeanor. Where  the  evidence  is  ex-parte,  the  party  charged  has 
no  means  of  establishing  a  defence,  and  such  premature  statements 
tend  to  excite  undue  prejudices  against  the  accused,  and  to  deprive 
him  of  the  benefit  of  a  fair  and  impartial  trial  ;  and  therefore,  in 
several  instances,  the  publication  of  matters  of  criminal  charge,  con- 
tained in  depositions  before  magistrates,  has  been  held  to  be  indict- 
able (m). 

(/,-)  3  B.  &  A.  167.  It  was   contended,  on  the   authority  of 

(/)  See  the  observations  of  Beat,  J.,ibid.  several  of  the  cases  above  cited,  that  the 

Bayley,  J.  observed,  that  the  case  of  Curry  publication  was  justifiable,  as  being  a  true 

r.  Walter  mast  be  taken  with  great  quali-  account  of    the    proceedings    in  a  court  of 

ficatione.  justice. 

(m)  See  the  King  v.  Fisher  and  others,  But    Lord    E&enborough,    C.   J.   said, 

2  Camp.  503.    The  printer,  publisher,  and  '« Trials  at  law  fairly   reported,   although 

editor  of  a  public  newspaper,  were  indicted  they  may  occasionally  proTe  injurious  t.. 

for  publishing  a  paragraph,  purporting  to  individual!                sen   held   to-be  priri- 

contain  the  examinations  before  s  magis-  '"-"  '■     &et    ""■:"  continue  M  pririlt 

trate,  upon  a  charge  brought  against  the  ,,u'  ,,e,H,|'lt   they  produce  - 

prosecutor  by  Mrs.  Popplewell;  the  publi-  manent.  and  the  oil  that  ai                them 

cation  then  proceeded  to  assume  the  truth  »»  rivo  ;m''  tocMentali  but  these  prelimi- 

of  the  depositions,  and  the  guilt  of  the  pro-  »  u'.v  examinations  have  no  soefa  privilege, 

secutor,  and  to  pronounce  that  he  would  their   only    tendency    is    to  prejudge  those 

meet  with  the  reward  due  to  his  villainy.  whom  the  law  still  presumes  to  be  innocent, 


265 


CIVIL  REMEDY— OCCASION. 


*266  ]         *And  as  the  publishing  such  preliminary  and  ex-parte 

statements  is  an  illegal  act  in  respect  of  its  tendency 
*267  ]    to  *obstruct  the  due  course  of  public  justice  ;  and  as  the 

same  act  makes  a  special  prejudice  to  the  particular  in- 
dividual, not  by  its  tendency  to  deprive  him  of  the  benefit  of  a  fair 
and  impartial  trial,  but  by  the  particular  disparagement  to  his  rep- 
utation and  clraracter  in  society,  the  publisher  is,  on  the  ordinary 
principle,  subject  to  an  action,  at  the  suit  of  the  injured  individ- 
ual (w).  In  the  late  case  of  Duncan  v.  Tkwaites  (o),  it  was  ex- 
pressly decided,  that  the  defendant  could  not  justify  the  publication 
of  a  charge  imputing  to  the  plaintiff  indecent  conduct  to  a  female 

child,  on  the  ground  that  the  alleged  libel  was  no  more 
[  *268  ]    than  a  correct    account  *of   the  proceeding  which  had 

taken  place  at  a  public  police-office  (//). 


and  to  poison  the  sources  of  justice.  It  is 
of  infinite  importance  to  us  all,  that  what- 
ever has  a  tendency  to  prevent  a  fair  trial 
should  be  guarded  against.  Every  one  of 
us  may  be  questioned  in  a  court  of  law, 
and  called  upon  to  defend  his  life  and  his 
character;  we  should  then  wish  to  meet  a 
jury  of  our  countrymen  with  unbiassed 
minds;  but  fur  this  there  can  be  no  securi- 
ty, if  such  publications  are  permitted." 

In  the  case  of  the  King  v.  Flet,  1  B.  and 
A.  879,  a  criminal  information  was  granted 
against  the  printer  and  publisher  of  a 
newspaper  for  publishing  his  minutes  of 
the  evidence  taken  before  a  coroner's  in- 
quest on  a  charge  of  murder,  accompanied 
by  comments  on  the  facts  as  they  occurred. 

Bayley,  J.,  adverting  to  the  publi- 
cation of  the  minutes  observed,  "  That  is 
a  matter  of  great  criminality;  for  the  in- 
quest before  the  coroner  leads  to  a  second 
inquiry,  in  which  the  conduct  of  the  ac- 
cused is  to  be  considered  by  persons  who 
ought  to  have  formed  no  previous  judgment 
of  the  case.  It  is  a  statement  of  evidence 
taken  wholly  ex-parte,  and  where  there  is 
no  opportunity  for  cross-examination.  A 
jury  who  are  afterwards  to  sit  upon  the 
trial  ought  not  to  have  ex-parte  accounts 
previously  laid  before  them.  They  ought 
to  decide  solely  upon  the  evidence  which 
they  hear  on  the  trial.  It  is  therefore 
highly  criminal  to  publish  before  such  trial 


an  account  of  what  has  passed  on  the  in- 
quest before  the  coroner. 

Abbott,  J.  "  Every  person  who  has  at- 
tended to  the  operations  of  his  own  mind, 
must  have  observed  how  difficult  it  is  to 
overcome  preconceived  prejudices  and  opin- 
ions, and  that  more  especially  in  matters  of 
sentiment  or  passion.  It  is,  therefore, 
most  mischievous  to  the  temperate  adminis- 
tration of  justice,  that  a  person,  either 
during  or  before  a  judicial  examination, 
should  publish  a  statement  of  facts  which 
are  made  the  subject  of  a  subsequent  trial; 
and  it  is  still  more  mischievous  when  that 
statement  i3  accompanied  with  comments. 
It  is  impossible  to  say  that  much  which 
exists  in  this  case  is  not  calculated  to  cre- 
ate a  prejudice  in  the  public  mind." 

(n)  Thus,  though  a  nuisance  to  a  public 
highway  be  in  itself  a  public  offence,  and 
indictable  as  such,  and  is  not,  in  the  ab- 
sence of  damage  to  a  particular  individual, 
the  subject  of  an  action,  yet  if  by  reason 
of  such  public  offence  any  damage  accrues 
to  any  individual  in  particular,  he  may 
maintain  an  action. 

(o)   3  B.  &  C.  556. 

(p)  Abbott,  L.  C.  J.,  in  delivering  the 
judgment  of  the  court,  upon  this  point 
said,  "  I  take  it  to  be  a  general  rule,  that 
a  party  who  sustains  a  special  and  particu- 
lar injury  by  an  act  which  is  unlawful  on 
the  ground  of  public  injury,  may  maintain 


JUDICIAL  REPORTS. 

And  although  the  objections  to  the  publication  of  ez-parte  state- 
ments do  not  apply  bo  forcibly  to  civil  as  they  do  to  criminal  pi 
ceedings,  yel  it  Beems  that  the  publication  of  ez-parte  proceedings, 

even  of  a  civil  nature,  when  they  are  injurious  to  the  characters 
of  individuals,  cannot  i>c  justified.     For  the  communication  of  such 
ez-parte  proceedings,  may  frequently  be  attended  with 
great  hardship  to  the  individual,  and  can  seldom,  'pre-    |    *269  ] 
vious  to  the  final  decision,  be  of  importance  to  the  pub- 
lic as  containing  any  judicial  information  (</ 1. 

In  the  case  of  Duncan  v.  Thwaites,  although  the  Lord  Chief 
Justice  pointed  out  some  distinctions  between  that  case  and  the 
previous  case  of  Curry  v.  Walter,  the  proceeding  which  had  been 
published  in  the  former,  being  one  which  was  merely  preliminary  in 
its  nature  and  which  might  be  lawfully  conducted  in  private,  if  the 
magistrates  engaged  in  it  thought  lit,  whilst  the  latter  proceeding 
was  before  a  court  instituted  for  final  determination  as  well  as  pre- 
liminary inquiry,  and  whose  doors  are  open  to  all  who  can  In.-  accom- 
modated, and  the  proceeding  itself  had  been  actually  terminated  by 
refusing  the  application,  yet  his  lordship  desired  that  notwithstand- 
ing those  distinctions  between  the  case  then  before  the  court,  and 
that  of  Curry  v.  Walter,  it  was  not  to  be  inferred  that  the  Bench 
was  of  opinion  that  the  publication  of  ex-parte  proceedings,  e\ 
in  that  court,  was  a  matter  allowable  by  law. 

Next  as  to  the  manner  in  which  a  judicial  proceeding  is  reported. 
As  the  privilege  of  publishing  judicial  proceedings  with 
impunity,  notwithstanding  *the  inconvenience  and  mis-  [  "l'TO  ] 
chief  which  such  publication-  may  occasion  to  individu- 
als, is  founded  upon  grounds  of  public  policy  and  convenience  :  the 
condition  necessarily  annexed  to  immunity  is,  that  the  proceeding 
be  fairly,  impartially,  and  correctly   reported. 

an  action  for  his   own  tpecial  injury;  and  plaintiff's    character;    a  publication    im- 

if  publications  like  the  present  impedi  hing  private  oharaoter   i>   action 

due  administration  of  justice  towards  per-  unless  the                  of  publishing   nuke* 

sons  accused  of  offences,  it  is  impossible  to  the  publication  ■               ;  and  where  the 

Bay  that  the  individual,  whose  trial  may  be  publication  i-  a  violation  of  the  criminal 

affected  by  them,  does  nol  bub!  tin  a  Bpecial  jurisprudence  of  the  country,  and  t!  • 

and  peculiar   injury,   even  in  that  view;  nothing  to  call  for  it,  the  publication  is  not 

and  he  certainly  sustains   an  injury  to  his  excusable. 

character  of  the  same  nature  as  the  injury  (</)   In  a  late   ease,  the  Lord  Chancellor 

to  any  other  person  by  any  other  Bp  ibserved,  thai  he  recollected   the 

of  defamation."  time  when    it  would  have   been    matter  of 

His   Lordship   further   observed,  in  the  surprise   to   evi-ry   lawyer  in  Westminster 

course  of  pronouncing  his  judgment,  "  The  Hall,  to  learn  that    the  publication  of  ex 

publication    ia     question    impeaches    the  parte  proceedings  was  legal. 


270  CIVIL  REMEDY— OCCASION. 

It  is,  therefore,  plain  that  this  principle  will  not  justify  any  mis- 
representation of  the  facts  ;  to  mis-state  any  part  of  the  proceeding 
would  be  not  to  benefit  and  instruct,  but  to  mislead  the  public,  and 
might  create  most  intolerable  mischief  to  individuals  inasmuch  as  it 
would  annex  to  the  calumny  a  degree  of  authenticity  from  its  sup- 
posed connection  with  a  solemn  deliberate  judicial  investigation. 
It  is  not,  howeyer  necessary  to  resort  to  the  latter  consideration  for 
the  purpose  of  divesting  such  a  publication  of  legal  defence  ;  it  is 
sufficient  that  the  misrepresentation  deprives  the  defendant  of  the 
excuse  which  might  have  been  available,  had  he  reported  the  facts 
correctly. 

In  the  case  of  Stiles  v.   Nokes  (r),  it  was  observed  by  Lord 

Ellenborough,  C.  J.  and  Grose,  J.  that  it  must  not  be  taken  for 

granted  that  the  publication  of  every  matter  passes  in  a  court  of 

justice,  however  truly  represented,  is,  under  all  circum- 

*271  ]  stances,  and  with  whatever  *  motive  published,  justifiable, 
but  that  doctrine  must  be  taken  with  some  grains  of  al- 
lowance. "  It  often  happens,"  said  Lord  Ellenborough,  "  that 
circumstances,  necessary  for  the  sake  of  public  justice  to  be  dis- 
closed by  a  witness  in  a  judicial  inquiry,  are  very  distressing  to  the 
feelings  of  individuals  on  whom  they  reflect.  The  protection  af- 
forded by  law  to  such  publications  does  not,  however,  extend  beyond 
a  plain  unvarnished  statement  of  the  proceeding,  and  will  not  war- 
rant the  least  misrepresentation  of  facts,  or  even  any  high  coloring 
of  the  circumstances  stated." 

Lofield  (s)  having  recovered  in  an  action  against  Baukcroft,  for 
maliciously  charging  him  with  felony,  and  for  procuring  him  to  be 
arrested  on  suspicion  of  the  same,  afterwards  published  that  Bank- 
croft  had  conspired  to  charge  him  with  this  felony,  and  that,  in 
vindication  of  his  character,  he  had  brought  an  action  against  him 
for  so  doing,  and  had  recovered  =£1100  damages  against  him."  On 
a  motion  for  a  criminal  information,  the  court  said,  that  the  present 
advertisement  had  falsely  represented  the  fact,  for  Lofield  did  not 
bring  his  action  for  a  conspiracy,  but  for  Bankcroft's 

*272  ]  maliciously  charging  him  with  felony,  and  *a  conspiracy 
requires  an  infamous  judgment.  The  rule  was  made  ab- 
solute. 

The  same  principle  applies  not  only  to  misrepresentations  of  facts, 
but  also  to  all  partial  and  garbled  statements,  prejudicial  to  the  cha- 

(r)  7  East,  493. 

(s)  Easter  Term,  5  G.  2.  1732.     2  Barnard.  K.  B.  128.      The  King  v.  Lofield. 


JUDICIAL  REPORTS.  272 

racter  of  the  individual  to  whom  they  relate  :  such  report-'  are,  at 
the  least,  useless  to  the  public,  and  to  individuals  oftentimes  most 
injurious. 

It  is  obvious,  that,  if  it  were  allowed  to  pick  out  and  Belect 
particular  parts  of  a  judicial  proceeding,  the  privilege  would  be  lia- 
ble to  the  most  grievous  abuse,  and  that  under  the  color  and  pre- 
tence of  communicating  to  1 1 1  < -  public,  useful  and  necessary  informa- 
tion, which  is  the  Legitimate  ground  for  investing  such  publications 
with  peculiar  and  extraordinary  means  of  protection,  the  reputation 
of  individuals  would  be  subjected  to  most  unjust  and  unmerited 
calumny.  And.  therefore, a  reporter  is  not  privileged  in  publishing 
a  speech  of  a  counsel  containing  reflections  on  the  character  of  aa 
individual  annexed  to  a  short  summary  of  the  trial  without  stating 
the  evidence  (<)• 

So  it  has  been  held  that  the  publishing  the  speech  of  a 
counsel  in  a  judicial  proceeding,  coupled  *with  a  general    [  *273  ] 
assertion,  that  his   statement   was   proved  by  a  witness 
called  upon  that  trial,  cannot  be  justified  (u). 

The  evidence  ought  to  be  stated  in  order  that  those  who  read  the 
report  may  judge  for  themselves,  and  it  is  not  sufficient  to  substitute 
the  mere  inference  of  the  reporter  (a). 

And  though  the  report  were  to  state  the  evidence,  it  seems  to  be 
doubtful  whether  the  publication  of  the  speech  of  a  counsel  which 
reflected  on  the  reputation  of  another  would  be  justifiable,  unless,  at 
least,  it  appeared  that  the  observations  were  warranted  and  that  the 
party  deserved  them  (y)  or  that  they  were  so  connected  with  the 
case,  that  the  detail  was  necessary  for  the  information  of  the  pub- 
lic O)  [a  a]. 

And  though  a  counsel  might  not  be  responsible  in  a  common  ac- 
tion for  slander,  although  he  made  use  of  observations  detrimental 

(0  Flint  v.  Pike,  4  B.   &  C.  473,  vide        (;/)  See  the  observations  of  Holroyd,  J. 

infra  under  the  title   plea.      And    quere  4  B.  and  C.  477,  ibid,  482. 

whether  he  would  be  justified  in  publishing  a         (z )  See  the  qnerfl  of  Bay  ley,  J.  I  15.  and 

speech  reflecting  on  the  character  of  an  indi-  C.  470. 

vidual,  even  although  the  evidence  were  also         [a  a]  In    Saunders  f.   Mills,  G  Bingh. 

published,  ibid.  L'1::>    il   waH   bold,  that  a  statement   in   a 

(u)   Lewis  v.  Walter,  4  B.  &  A.  806.  newspaper  of  the  speech  of  a  counsel,  in  a 

(x)  Per  Abbott,  L.  C.  J.  4    B.    and  A.  oanM    reflecting   on    the    character   of  the 

612.     "  If  a  party  is  to  be  allowed  to  pub-  plaintiff,  who  was   the   defendant  in    that 

lish  what  passes  in  a  court  of  justice,  he  cause,  without  stating   any  evidence,  oouM 

must   publish   the   whole    case,    and    not  not   be    justified,    though    the    defendant 

merely  state  the  conclusion  which  he  him-  proved  that   he   had  copied  the  paragraph 

self  draws  from  the  evidence."  from  another  paper. 


273  CIVIL  REMEDY— OCCASION. 

to  individuals,  yet  it  seems  that  a  party  who  repeated  the  slander- 
ous matter  to  all  the  world,  would  be  liable  to  such  an 
[  *274  ]  *action  ;  for  the  repeating  such  slander,  is  not  done  in 
the  course  of  the  administration  of  justice,  and  therefore 
is  not  privileged  (a).  And,  although  the  uttering  of  slanderous 
matter  may  be  justified  by  the  occasion  on  which  it  is  spoken,  the 
subsequent  publication  of  it  may  be  criminal. 

In  the  case  of  Duncan  v.  Thwailes  (6),  already  cited,  it  was 
held  that  a  statement,  purporting  to  be  an  account  of  a  charge  made 
at  a  police  office  against  the  plaintiff  for  an  attempt  to  violate  the 
person  of  Ann  Chandler,  was  not  justified  by  a  plea  which  set  forth 
the  depositions,  from  one  of  which  it  appeared  that  the  report  wholly 
omitted  the  deposition  of  Desormeaux,  a  surgeon,  in  which  he  had 
deposed,  that  to  a  question  proposed  by  him  to  Ann  Chandler,  to  a 
material  fact,  she  had  repeatedly  answered  in  the  negative,  although 
she  had  before  the  magistrate  sworn  in  the  affirmative. 

Neither  does  the  privilege  extend  to  any  defamatory  observations 
or  comments,  made  in  addition  to  what  passed  in  court.  Thus, 
where  the  defendant  had  published  a  statement,  which  he  attempted 
by  his  plea  to  justify,  as  being  a  fair  and  impartial  ac- 
[  *275  ]  count  *of  a  proceeding  in  a  court  for  the  discharge  of  in- 
solvents, but  had  prefaced  that  statement  by  the  words 
"  shameful  conduct  of  an  attorney,"  it  was  held  that  a  justification 
could  not  be  supported  (Z>). 

(a)  See  the  observations  of  Holroyd,  J.  is   not    necessary   to  decide,   because  the 

in  the  case  of  Flint  v.  Pike,  4  B.  and  C.  narrator  in  this  case  has  not  confined  him- 

481.     See  also    Lake   v.  King,  1  Saund.  self  to  what  actually  passed  in  court,  but 

120.     R.  v.  Creevy,  1  M.  and  S.  273.     R.  has  prefaced  the  statement  with  the  words 

v.  Lord  Jlbinydon,  1  Esp.  C.22R.  "  shameful  conduct   of  an    attorney,"    he 

(M  °  B  and  C  296  has  therefore  taken  upon   himself  to  make 

(6)  Abbott,  L.  C.  J.  in  pronouncing  the  that  allegation  concerning  the  plaintiff;  we 

judgment  of  the  court,  observed  the  ques-  think,    therefore,    the   pleas    are   bad,  ^-c. 

tion°whethcr  a  person   may  publish  a  cor-  The  judgment  was    afterwards  affirmed   in 

rect  narrative  of  preceedings,  in  a  court  of  the  Exchequer  Chamber,  3  B.  and  B.  297. 

justice,  which  contains   matter  defamatory  For  further  observations  on  this  subject, 

of  a  third  person  not  a  party  to  the  suit,  it  see  the  Preliminary  Discourse. 


CHAP  T  K  i;  \i  r. 


Probable  Cause. 


In  the  next  place,  the  occasion  of  publishing  may  supply  an  abso- 
lute defence,  independently  of  the  actual  intention  of  the 
publisher  but  dependent  on  the  existence  of  'probable  or    [  *276  | 
reasonable  cause  for  the  act. 

It  has  been  seen  (a)  that  the  ordinary  action  for  slander  is  not 
maintainable  where  the  publication  has  been  made  in  a  judicial  pro- 
ceeding, according  to  the  due  course  of  law.  But  a  special  action 
on  the  case  may  be  supported  in  respect  of  a  malicious  and  unfound- 
ed prosecution.  So,  also,  it  seems,  may  such  an  action  be  support- 
d  against  an  advocate  who  has  abused  his  professional  situation,  for 
improper  and  malicious  purposes.  So,  also,  is  such  an  action  main- 
tainable in  respect  of  a  malicious  disparagement  of  a  man's  title  to 
an  estate  though  it  be  made  by  one  who  himself  claims  to  be  enti- 
tled. But  in  all  these  cases,  and  perhaps  in  some  others, 
*it  seems  that  the  existence  of  probable  or  reasonable  [  *277  ] 
cause  for  the  charge  or  claim  would  constitute  a  legal 
bar  to  the  action  ;  or,  as  it  would  perhaps  be  more  correct  to  state 
it,  the  want  of  such  probable  cause  would  lie  essential  to  the  ac- 
tion. 

It  is  obvious  that  the  allowing  probable  can-.'  to  operate  as  a  de- 
fence must  depend  on  principles  of  policy  and  convenience. 

On  general  principles  of  expediency,  the  absei <>f  probable  i 

is  essential  to  the  action,  and  the  existence  of  probable  cause  is  a 
complete  bar  independently  of  the  actual  intention  of  the  defendant 
in  those  cases  where  it  would  be  impolitic  on  the  one  hand  to  allow  the 
mere  occasion  to  operate  as  an  absolul  i  bar  :  bat  where,  on  the  other 
it  would  be  inconvenient  to  make  the  liability  depend  on  the  mere 
motive  of  the  publisher,  and  where  public  convenience  requires  that 

(o)  Supra,  Chap.  10. 

Vol.  I.  24 


277  CIVIL  REMEDY— OCCASION. 

the  act  should  be  protected,  provided  reasonable  ground  for  doiug 
it  really  existed. 

Thus,  in  the  case  of  a  malicious  charge  in  the  ordinary  course  of 
justice,  it  would  be  attended  with  great  mischief  and  vexation  if  the 
prosecutor  were  to  be  absolutely  exempted  from  responsibility,  al- 
though he  had  wantonly  perverted  the  course  of  law  to  malicious 
and  vexatious  purposes ;  it  might,  on  the  other  hand,  be  productive 
of  evil  to  make  a  prosecutor  amenable  in  damages  when 
[  *278  ]  he  failed  to  establish  the  charge  in  all  cases  where  *he  had 
acted  maliciously  ;  for  in  numerous  instances  it  might  be 
highly  expedient  that  judicial  investigation  should  take  place  though 
the  prosecutor  be  not  actuated  by  the  love  of  justice,  but  by  the 
basest  motives  of  personal  malice.  The  public  may  in  numerous  in- 
stances, be  benefited  by  the  promotion  of  inquiry,  notwithstanding 
the  immorality  of  the  prosecutor.  And,  therefore,  where  a  reason- 
able and  probable  cause  for  making  the  charge  really  exists,  and  conse- 
quently where  the  public  has  an  interest  in  promoting  inquiry,  be 
the  motives  of  the  prosecutor  ever  so  culpable  in  a  moral  point  of 
view,  it  becomes  a  matter  of  legal  policy  and  discretion  to  exempt 
him  from  civil  liability  ;  and  therefore,  in  all  actions  for  malicious 
prosecutions,  the  want  of  probable  cause  is  not  only  invariably  essen- 
tial to  the  action,  but  proof  of  the  negative  is  incumbent  on  the 
plaintiff  (c). 

The  requiring  such  proof  from  the  plaintiff  is  not  only  a  rule  of 
policy  and  convenience,  but  of  strict  natural  justice  when  it  is  consid- 
ered how  often  it  happens  that  the  facts  on  which  a  criminal  prosecu- 
tion is  properly  founded,  are  confined  to  the  knowledge  of  the  prosecu- 
tor alone,  and  that  if  this  proof  were  not  required  from 
[  *279  ]  the  *plaintiff  how  often  a  bona  fide  prosecutor  would  be 
exposed  to  an  action  against  which  he  might  have  no 
defence,  from  his  inability  to  prove  the  probable  cause  which  really 
existed  (d). 

AYhat  shall  amount  to  probable  or  reasonable  cause,  in  this  as  well 
as  other  cases,  may  be  either  a  question  of  law,  arising  simply  on 
the  mere  facts,  or  it  may  depend  on  the  conclusion  of  the  jury  from 
the  facts.  It  is  a  question  of  law  arising  simply  upon  the  facts,  and 
independently  of  any  general  conclusion  made  by  a  jury  in  all  cases 
where,  from  the  mere  facts  themselves,  the  court  can,  by  the  aid  of 

(c)  1T.R  520.     1  Salk.  14,  15,  21.    5         (<2)  Infra  tit.  evidence,   and  see  Starkie 
Mod.  394,   5.     1   Vent.   86.     Carth.  415.     on  Evidence,  Pt.  iv.,  911. 
See  the  cases,   Starkie  on   Evidence,   tit. 
Malicious  Prosecution. 


PRor,Ai;u-:  cause. 


279 


any  rule  or  principle  of  law,  draw  or  exclude  the  inference  of  prob- 
able cause  from  Bucb  facta  <  e  |  [_<'  "J- 


(c)  Tims  in  the  case  of  Oolding  v. 
Crowle,  M.  26  G.  8  B.  X.  P.  14,  it  is 
said,  "if  the  plaintiff  da  prove  malioe, 
yet  if  the  defendant  Bhow  a  probabli 
he  shall  hive  a  verdict,  and  the  judge,  m  I 
the  jury,  is   bo  letermine  whether  he  hil 

laintiff  having  brought  an 
a;,'  kinst  th"  defen  Lant  tor  a  malicious  pros- 
ecution tor  perjury  obi  line  1  ■ 
a  motion  for  a  new  trial,  the  conn 
aside,  (it  appearing,  on  the  report  of  the 
ju  Ige  that  there  was  prob  il  ' 
as  a  verdict  against  evidence,  hut  as  a 
verdict  against  law  ;  (note  a  qumre  is 
added  in  the  margin).  So  in  the  case  of 
Candell  v.  Lou  Jon,  cor.  Buller,  J.  Guildh. 
after  Trin.  178"),  cited  in  Johnstone  v.  Sut- 
ton, 1  T.  EL  520.  Buller,  J.  stated  to  the 
jury  that  there  were  two  questions  to  be 
determined  :  1st,  whether  the  facts  in  evi- 
dence were  true  ;  2dly,  whether,  if  true, 
they  showed  a  want  of  reasonable  or  proba- 
ble cause  ;  and  the  learned  judge  added, 
that  what  is  reasonable  or  probable  cau-^e 
is  matter  of  law,  and  he  then  gave  his 
opinion  on  the  case.  And  iu  the  case  of 
Johnstone  v.  Sutton,  1  T.  II.  4'.i:3,  Lords 
Mansfield  and  Loughborough,  in  stating 
their  opinions  for  reversing  the  judgment, 
observe  that  the  question  of  probable 
cause  is  a  mixed  question  of  law  aud  toot. 
Whether  the  circumstances  alleged  to  show 

it  probable   or    UOt    probable    are  true  and 

existed,  is  a  matter  of  tool  j  whether,  sup - 
them  to  '•>'■   true,  int  to  a 

■.  of  1  iw,  and 

upon  this  distinction  prooee  led  th 
Reynoli-    v.    A"     /<</;/.    1    Wils.  232.     [n 
that  case  an  action   for  is  pn  Be- 

cution  was  brought  against  the  defendant 
for  maliciously  proceeding  by  information 
before  certain  Bub-commissioners  of  the 
excise  in  Ireland  in  respeot  of  certain 
goods  of  the  plaintiff's,  which  had  been 
condemned  by  the  sub-commissioner,  but 
which  condemnation   b  i  I  rse  I  i  □ 

appeal  to  the  commissioners.  After  a  ver- 
dict for  the  plaintiff,  judgment   was  ve- 


in 1  that    i  . 
th  •  K    B.,  up  'ii  en  r   I  n  ught,  I 

:  opinion  thir  the  declaration  which 
i   in  the  6 

tie  se  ;  for    their 

I  tig,  and  ti; 

ment,  on  ap]  infer- 

malloe  on  the  p  irt  of  I 

below. 

So  in  the  case  of  /      •  // 

Btarkie's  C.  167,  Ld.    Ellenb  n  igh  deliv- 
ered his  opinion  b>  the  jury,  that  in   point 
of  law  a  constable  was  uot   justified  in  tak- 
ing a  i'  ii  ty  int  .  without  warrant, 
on  a  charge  of  having  re  o  goods, 
on  the   mere  inform 
one  of  the   principal  fel  i 
other  cases,    where    the   con 
what  is  reasonable  is  a  . 
tiocoflaw.     Co.   Litt.  5G  b.    I  Co.   27  b. 
Hobari  v.  Hammond,  Cro.  J. 
der  v.    Harvey,  Cro.    !'.!:        -  Bell   V. 
Wordell,   Wilk-s,     202.      LI.   Mansfield, 
241.     Hill  v.    Yates,  2  Moore  80.     Btar- 
kie  on   Evidence,   p.  iii.   416.      So   Again 
there  is   no   probable  cause    in    law  where 
the  party  d  les  not  a  it   upon 
which  might   of  themselves  have  supplied 
probable  better 
Ige   that  there   was,    in    truth,  no 
probab!                             to  one  wh 
ter  informed   there   is   no   pn 
See  H  iw.  P.  c.  b.   •_'.  o   12.  s 
Anthony    Ashley's  o  is  >,  12   I 

•  t  of   1  iw,  be 
!  in  arresting  another,  if  h 
bona  tide  on  the  opinion 

yet  it'  he  ■ 
ion,  but  from  m  dioious  moti  • 

that  he  must    toil,  there  Would,  u>   | 
law.be    a    want    of    probable  ■   .    -  /»'    - 

B  it,  "ii  the  other  h  a 

author  ' 

probable  iy   be 

in  \tter  of    mere    judicial    into 

the  mere  bets,  independently  of  the  jury 

it  by   no  means   follows   that    such  must 


279 


CIVIL  REMEDY— OCCASION. 


'280  ]        *Where,  on  the  other  hand,  the  distinction  between 
probable  and  improbable,  reasonable  or  unreasonable,  is 


always  be  the  case  :  on  the  contrary, 
it  seems  to  be  manifest  that  whenever 
the  facts  are  numerous  and  complicated, 
and  do  not  fall  within  any  particular 
rule  or  principle  of  law,  then  the  jury 
must  draw  the  conclusion  in  fact,  and  that 
the  conclusion  in  law  will  follow  such 
conclusion  in  fact.  Thus,  in  the  case  of 
Reynolds  v.  Kennedy,  cited  in  the  opin- 
ion given  by  Lords  Mansfield  and  Lough- 
borough in  the  case  of  Johnstone  v.  Sut- 
ton, the  court  held,  that  the  very  fact 
that  the  sub-commissioners  had,  in  the 
first  instance,  condemned  the  goods,  were 
sufficient  to  establish  the  existence  of 
probable  cause  as  a  question  of  law, 
yet  in  this  case,  as  well  as  in  the  others, 
where  the  court  has  made  the  legal  infer- 
ence, some  prominent  facts  have  existed 
on  which  the  court  could  found  a  gen- 
eral rule,  which  was  to  govern  not 
only  .the  individual  case,  but  all  which 
should  be  within  its  scope.  But,  in  ma- 
ny instances,  the  facts  are  so  numerous 
and  so  complicated  as  to  render  it  diffi- 
cult to  apply  any  general  rule,  and  where 
it  might  be  highly  inconvenient  to  do 
so  on  account  of  multiplying  legal  rules 
and  distinctions  to  a  very  great  extent. 
A  prosecution  may  be  instituted  on  such 
unsatisfactory  or  satisfactory  grounds,  in 
point  of  evidence,  that  the  court  might 
find  no  difficulty  in  deciding  as  a  matter  of 
law  on  the  absence  in  the  one  case,  or  the 
existence  in  the  other  of  probable  cause. 
Thus,  in  the  case  of  Isaacs  v.  Brand,  2 
Starkie's  C.  167,  Lord  Ellenborough  held 
that  a  mere  declaration  by  a  principal  felon 
that  another  person  had  received  the  goods, 
did  not  afford  a  probable  or  reasonable 
ground  for  arresting  the  latter;  on  the 
other  hand,  the  fact  of  finding  stolen  goods 
recently  after  the  felony  in  the  possession 
of  another  would  certainly,  in  point  of  law, 
show  probable  cause  for  an  arrest;  but  be- 
tween such  extreme  cases,  there  may  be  an 
infinite  number  of  intermediate  ones  where 
the  law  can  lay  down  no  precise  rules  as  to 


the  existence  of  reasonable  cause,  and  con- 
sequently where  the  inference  must  be 
drawn  by  the  jury.  Many  instances  occur 
in  practice,  in  actions  of  this  nature  as 
well  as  others,  where  the  question  of  what 
is  probable  or  reasonable  is  properly  left 
to  the  jury.  Thus,  in  the  case  of  Isaac3 
v.  Brand,  2  Starkie's  C.  167,  Lord  Ellen- 
borough  left  the  question  of  probable  cause, 
under  the  circumstances,  to  the  jury,  and 
his  lordship  pursued  the  same  course  in 
Brookes  v.  Warwick,  2  Starkie's  C.  389. 
And  in  general  it  seems  that  where  no 
acknowledged  rule  or  principle  of  law  de- 
fines the  limits  between  probable  and  im- 
probable, reasonable  and  unreasonable,  the 
question  is  one  for  the  jury,  under  all  the 
circumstances  of  the  case.  See  Lord  Ken- 
yon's  observations  in  Hilton  v.  Shepherd, 
6  East.  14  n.  Fry  v.  Hill,  7  Taunt.  397. 
Starkie  on  Evidence,  tit.  Law  and  Fact, 
part  iii.  p.  418. 

[a  a]  And  see  Davis  v.  Hardy,  6  Barn, 
and  Cres.  225.  Davis  hired  a  chaise  in  the 
name  of  Hardy  and  received  from  the  as- 
signee of  Martin,  a  bankrupt,  the  amount 
of  the  chaise  hire;  he  did  not  pay  it  to  the 
innkeeper  or  to  Hardy,  nor  did  he  mention 
to  the  latter  that  he  had  received  the 
amount.  Upon  a  charge  being  preferred 
against  Davis,  he  was  examined  before  one 
of  the  magistrates ,  and  admitted  most  of 
the  facts.  On  this  evidence,  the  learned 
judge  at  the  trial  was  of  opinion,  that  there 
was  sufficient  evidence  of  the  want  of  pro- 
bable cause  for  indicting  Davis  for  embez- 
zlement. Staines,  the  proprietor  of  the 
chaise,  was  afterwards  called  as  a  witness 
for  the  defendant,  and  it  appeared  on  his 
evidence  that  he  having  applied  to  Davis 
for  payment,  Davis  requested  him  not  to 
tell  Hardy ,  for  it  would  do  him  a  great  in- 
jury. The  learned  judge  being  of  opinion 
that  the  subsequent  facts  coupled  with  the 
former,  shewed  reasonable  and  probable 
cause,  nonsuited  the  plaintiff,  t  though 
pressed  by  the  defendant's  counsel  to  leave 
it  to   the   jury    whether    they    believed 


PROBABLE  CAUSE,  280 

not  defined  by  any  rule  or  principle  "of  law,  the  conclu-  [  *-sl  ] 
sion  must,  it  ■  drawn  by  the  jury  (/  >. 

The  same  protection  which  is  afforded  to  a  'party  in  a    [  *282 
judicial  proceeding  is  with  Borne  limitation  extended  to  a 
professional  advocate.     Bo  is  not  subject  to  an  action, 
provided  the  facts  *  which  he  alleges  are  pertinenl  to  the  •■'•  ] 

cause,  and  are  3ted  by  his   client ;  for  though  a 

counsel  may  he  expected  to  exercise  a  discretion  whether  the  parts 
which  he  states,  it'  true,  be  material  to  the  issue,  yet  it  would  be 
too  much  to  expect  that  he  should  take  notice,  at  his  peril,  whether 
the  facts  themselves  be  true  or  false.  In  the  case  of  11""'"/  v.  Chi- 
ton (  g)  it  is  1  iid  down,  that  ••  if  a  counsel  scandalous  words 
against  one  in  defonding  hi-  client1  ,  an  action  lies  not  against 
him  for  so  doing,  for  it  is  his  duty  to  Bpeak  for  his  client,  and  it 
shall  be  intended  to  be  spoken  according  to  his  client's  instructions. 

In  the  case  of  Brooke  v.  Sir  Henri/  Montague  (A)  the  plaintiff 
brought  an  action  against  the  defendant  for  these  words  :  "  he  was 
arraigned  and  convicted  of  felony."  The  defendant  pleaded,  that 
the  plaintiff,  at  another  time,  brought  false  imprisonment 
against  J.  S.,  one  of  the  Serjeants  *of  London,  who  jus-  *284  j 
tified  by  warrant  from  Sir  N.  Moseley,  mayor  of  Lon- 
don, for  arresting  him,  to  find  sureties  for  the  good  behavior,  and 
they  were  thereupon  at  issue,  and  found  against  the  plaintiff,  who 
thereupon  brought  an  attaint.  And  that  the  defendant,  being  con- 
sUiarious  el  peritus  in  lege  was  retained  to  be  counsel  with  the  | 
jury,  and  in  evidence  at  the  trial  in  London,  spake  those  words  in 
the  declaration  ;  and  STelverton  and  Coke,  attorney-general,  being 
of  counsel  for  the  defendant,  the  court  resolved  that  the  justification 
was  good,  for  a  counsellor  in  law  retained  hath  a  privilege  to  enfi 
any  thing  which  is  informed  unto  him  for  his  client,  and  to  give  it  in 
evidence,  it  being  pertinenl  to  the  matter  in  question,  and  not  to  ex- 
amine whether  it  be  true  or  false  :  bat  it  is  at  the  peril  of  him  who 
informs  it:  for  a  counsellor  is,  at  his  peril,  to  give  in  evidence  that 
which  his  client  informs  him,  being  pertinent  to  the  matter  in  ques- 
tion, otherwise  action  on  the  case  lios  against  him  by  his  client,  ae 
Popham  said  ;  but  matter  not  pertinent  to  the  issue  or  the  matter 
in  question  he  need  not  deliver,  for  he  is  to  discern,  in  his  diseri  lion 
what  he  is  to  deliver  and    what  not,  and   although  it  be  false  he  is 

Staines's  evidence;  and  the  court  of  King's         (/ )  Bee  note  (O  supra,  p.  279. 
Bench  refused  to  grant  a  new  trial.  (<?)  Styles,  40L'. 

{h)  Cro.  Jac.  90. 

Z4« 


284 


CIVIL  REMEDY— OCCASION. 


excusable,  being  pertinent  to  the  matter  ;  but  if  ho  give  in  evidence 
any  thing  not  material  to  the  issue,  which  is  scandalous,  he  ought  to 
aver  it  to  be  true,  otherwise  he  is  punishable ;   for  it 
[  *285  ]    *shall  be  intended  as  spoken  maliciously   and    without 
cause,  Which  is  a  ground  for  an  action.     So,  if  a  coun- 
sellor object  matter  against  a  witness  which  is  slanderous,  if  there 
be  cause  to  discredit  his  testimony,  and  it  be  pertinent  to  the  matter 
in  question,  it  is  justifiable  what  he  delivers  by  information,  although 
it  be  false  ;  so  here  it  is  material  evidence  to  prove  him  a  person  fit 
to  be  bound  to  his  good  behavior,  and  in  maintenance   of  the  first 
verdict,  therefore  his  justification  is  good. 

The  same  principle  extends  to  a  comment  made  by  a  counsel  upon 
facts  proved  in  the  cause,  or  proposed  to  be  proved  and  relevant  to 
the  matter  in  issue  (i). 

It  seems,  however,  to  be  doubtful  whether,  even  in  the 

[  *286  ]    *case  of  an  advocate,  if  it  could  be  proved  that  he  acted 

of  express  malice,  and  without  probable  or  reasonable 


(i)  Hodgson  v.  Scarlett,  1  B.  and  A. 
282.  The  words  stated  in  the  first  count 
of  the  declaration  were  these,  "  some  ac- 
tions sire  founded  in  folly,  some  in  knavery- 
some  in  both;  some  in  the  folly  of  the  at- 
torney, some  in  the  knavery  of  the  attor- 
ney, some  in  the  folly  and  knavery  of  the 
parties  themselves;  Mr.  Peter  Hodgson  was 
the  attorney  of  the  parties,  drew  the  pro- 
missory note,  and  fraudulently  got  Bow- 
man to  psiy  into  his  hands  £150  for  the 
benefit  of  the  plaintiff.  This  was  one  of 
the  most  profligate  things  I  ever  knew  done 
by  a  professional  man.  Mr.  Hodgson  is  a 
fraudulent  and  wicked  attorney."  In  the 
second  count,  the  words  were  stated  "  Mr. 
Hodgson  is  a  fraudulent  and  wicked  attor- 
ney;" plea  general  issue.  At  the  trial  at 
the  Lancaster  Assizes,  before  Wood  Baron, 
Raine  opened  the  case,  and  stated  that  the 
action  was  brought  for  words  spoken  by  the 
defendant,  in  an  address  to  the  jury  as 
counsel,  in  a  cause,  tried  at  the  preceding 
assizes,  and  that  they  were  not  warranted 
by  the  facts  of  the  case;  on  this  the  learned 
judge  said,  "  I  take  it  for  granted,  from 
your  opening,  that  there  was  such  a  cause 


tried,  and  that  there  was  a  question  in  it, 
respecting  the  drawing  of  the  promissory 
note  as  mentioned,  and  that  these  words,  if 
spoken,  were  part  of  the  defendant's  speech 
to  the  jury,  and  had  reference  to  that  tran- 
saction." To  this,  both  sides  assented, 
and  he  then  added,  "  the  observations 
might  be  too  severe;  that  I  can  say  nothing 
about,  but  as  they  were  relative  to  the 
subject  matter  of  the  cause  as  at  present 
advised,  I  think  the  action  not  maintain- 
able. The  learned  judge,  therefore,  being 
of  opinion  that  it  was  not  for  the  jury  to 
try  whether  the  cause  or  occasion  for  speak- 
ing the  words  was  sufficient  to  warrant 
them  though  there  was  nothing  to  leave  to 
them,  even  supposing  the  words  to  be 
proved,  and  nonsuited  the  plaintiff. 

The  court  of  King's  Bench  afterwards 
refused  to  grant  a  new  trial,  on  the  ground 
that  the  words  complained  of  were  relevant 
and  pertinent  to  the  original  cause  in  which 
they  had  been  uttered,  and  consequently, 
that,  according  to  the  principle  laid  down 
in  the  case  of  Brooke  against  Sir  Henry 
Montague,  they  were  not  actionable  [1.] 


[1]  See  Hastings  T.  Lusk,  22  Wendell,  410. 


imjoi;ai;li-:  cai  ■  -i.. 


286 


cause,  an  action  might  not  be  maintained  ;  and  the  court  in  the  case 
last  cited  gave  no  opinion  on  the  subject;  but  it  seems  that,  at  all 
events,  the  plaintiff  could  not  even   then  recover  in  an 
ordinary  action  for  defamation,  bul   'must  reBort  to  a    | 

special  action,  alleging  express  malice  </•■)  and  the  want 
of  probable  cause. 

in  where  a  party  extrajudicially  asserts  his  title  to  the  lands 

of  another,  the  verj  '  bis  making  a  claim  precludes 

the  owner  who  is  injured  *by  it  from  ring  in  an    [  *288   ] 

ordinary  action  for  slander,  independently  of  any  inquiry 
as  to  the  sincerity  of  the  claimant  (7)  ;  for  it  would  be  bighl 
veni'iit  and  impolitic  to  subjeel  the  motive  and  intention  of  a  claim- 
ant generally  to  legal  inquiry,  lint  on  the  other  hand,  where  a  party 
makes  such  a  claim  maliciously  and  without  any  probable  cause,  he 
is  liable  to  a  special  action  alleging  malice  and  the  want  of  proba- 
ble cause  ('»)• 

So  that  if  B.  published  that  he  had  a  lease  of  Blackacre  for  one 


(7c)  See  the  observations  made  by  IIol- 

royd,  J.  in  the  case  of  Fair  man  v.  Ives,  1 
B.  &  A.  G45.  In  the  case  of  Hodgson  v. 
Scarlett,  2  B.  and  A.  the  same  learned 
judge  observed,  with  a  view  to  the  due  ad- 
ministration of  justice,  counsel  are  privi- 
leged in  what  they  say;  unless  the  adminis- 
tration of  justice  is  to  be  fettered,  they 
must  have  free  liberty  of  speech  in  making 
their  observations,  which  it  must  be  re- 
membered may  be  answered  by  the  op- 
posing counsel,  and  are  commented  on  by 
the  judge,  and  are  afterwards  taken  into 
consideration  by  the  jury  who  have  an  op- 
portunity of  judging  how  far  the  matter 
uttered  by  the  counsel  it  warranted  bj  the 
facts  proved;  therefore,  in  the  course  of 
the  administration  of  justice,  counsel  have 
a  special  privilege  of  uttering  matter  even 
injurious  to  an  individual,  on  the  ground 
that  such  a  privilege  tends  to  the  adminis- 
tration of  justice.  And  if  a  counsel  in  the 
course  of  a  cause,  were  to  utter  observa- 
tions injurious  to  individuals,  and  not  rele- 
vant to  the  matter  in  issue,  it  seems  to  me 
that  he  would  not  therefore  be  responsible 
to  the  party  injured,  in  a  common  action 
for  slander,  but  that  it  would  be  necessary 
to  sue  him  in  a  special  action  ou  the  case. 


in  which  it  must  be  alleged  in  the  declara- 
tion, and  proved  at  the  trial,  that  the  mat- 
ter was  spoken  maliciously  and  uilhout 
reasonable  and  probable  cause.  This  mat 
be  illustrated  by  the  common  case  of  a 
false  charge  of  felony  exhibited  before  a 
justice  of  the  peace;  there  an  action  upon 
the  case,  as  for  defamation,  will  not  lie, 
the  slander  is  uttered  in  the  course 
of  the  administration  of  justice,  but  the 
party  complaining  is  bound  to  allege  that 
it  was  made  without  reasonable  or  prob- 
able cause. 

(/)  For,  according  to  the  judgment  of 
the  court,  in  the  ease  of  GerrarJ  v.  Dick- 
enson, 1  Co.  18,  if  an  action  should  lie 
where  the  defendant  himself  claims  an  in- 
terest,  how  can  any  make  claim  or  title 
to  any  land,  or  begin  any  suit,  ■ 
any  advice,  "r  Set  k  a  Iviv  an  1 
lest  be  should  be  subject  to  an  action 
which  would  lu'  inconvenient,  and  that  this 
■  to  the  opinion  in  Banister's 
case,  that  no  action  lies  against  one  who 

publishes  another  to  be  bis  v  illein  without 
adding  Something  by  way   of  threat  which 
occasions  special  damage, 
(m)  Infra,  289. 


288  CIVIL  REMEDY— OCCASION. 

thousand  years,  he  would  not  be  liable  to  an  ordinary  action  for 
slander,  though  he  had  no  such,  lease  (n).  But  still  he  would  be 
liable  to  a  special  action  on  the  case  if  he  made  such  an  assertion 
knowing  it  to  be  false,  or  as  it  seems,  without  any  probable  cause. 

The  plaintiff  (o)  declared,  that  he  was  seized  of  the 
[  *289  ]  *manor  and  castle  of  H.  by  purchase  from  Lord  Audley, 
and  that  he  was  about  to  demise  the  castle  and  ma- 
nor of  H.  to  Ralph  Egerton  for  a  term  of  twenty-two  years ;  that 
the  defendant  said,  "  I  have  a  lease  of  the  castle  and  manor  of  H. 
for  ninety  years,"  and  then  and  there  showed  and  published  a  de- 
mise, supposed  to  be  made  by  George  Lord  Audley,  grandfather  to 
the  said  Lord  Audley,  for  ninety  years,  to  Edward  Dickenson  her 
husband,  and  published  the  said  demise  as  a  good  and  true  lease, 
when,  in  fact,  the  lease  was  counterfeited  by  her  husband,  and  the 
defendant  knew  it  to  be  counterfeited;  by  reason  of  which  words, 
the  said  R.  E.  did  not  proceed  to  accept  the  plaintiff's  lease.  The 
defendant,  in  her  plea,  denied  her  knowledge  of  the  forgery ;  and 
the  plaintiff  demurred.     And  it  was  resolved, 

1.  That  if  the  defendant  had  affirmed  and  published  that  the  plain- 
tiff had  no  right  to  the  castle  and  manor  of  EL,  but  that  she  herself 
had  rfght  to  them,  in  that  case,  because  the  defendant  herself  pre- 
tended right  to  them,  although  in  truth  she  had  none,  no  action 
would  lie. 

And,  therefore,  that  for  the  said  words,  "  I  have  a  lease  of  the 
manor  of  H.  for  ninety  years,"  although  it  is  false,  yet  no 
[  *290  ]    action  lies  for  slandering  his  title  or  interest  in  the  said 
castle  or  manor,  (p) 
2dly.  That  there  was  other  matter  in  the  declaration  sufficient  to 
maintain  the  action,  and  that  was  because  it  was  alleged  in  the  de- 
claration, that   the  defendant   knew  of  the  communication  of  the 
making  of  the  lease  to  R.  Egerton,  and  knew,  also,  that  the  lease 
was  forged  and  counterfeited,  and  yet,  against  her  knowledge,  she 
had  affirmed  and  published  that  it  was  a  good  and  true  lease. 

So  in  the  case  of  Goulding  v.  Herring-  (#)  it  was  agreed,  that 
though  the  plaintiff  claims  title,  yet  if  it  be  found  to  be  done  mali- 
ciously, the  action  lies  ;  but  if  upon  evidence  any  probable  cause  of 

(?i)  Jenk.   247.     Cro.   E.  14.  Mo.  144,  (p)  And  note,  that  although  it  appeared 

148,  410.     Roll.  R.  409.     4  Rep.  18.  Telv.  by  the  defendant's  bar,  that  she  had  no  in- 

89.     Cro.  Car.  140.     Cro.   J.  197,485.     1  terest  in  the   lease,  yet   as  the  matter  al- 

Roll.  R.  244.     3  Buls.  75.     Pal.  529.  leged  in  the  declaration   did   not  maintain 

(o)  Sir    G.  Gerrard  v.   Dickenson,  4  the  action,  the  bar  would  not  make  it  good. 

Rep.  18.    Cro.  Eliz.  197.  (?)  1  Roll.  141. 


PROBABLE  CAUSE.  290 

claim  appears,  it  ought  not  to  be  found  maliciously.     So  according 
to  Rolle,  C.  J.  (r),  "  If  I  have  color  of  title  to  land,  and  I  say  to 
another,  I  have  better  title  to  the  land  than  you,  no  action  'will  lie 
against  me,  though  my  title  be  not  so  good  as  the  other   i 
Hence  it  appears,  that  although  the  making  such  a 
claim  be  sufficient  to  repel  the  ordinary  "action  for  shin-    [    "i"'l    | 
der,  yet  that  a  special  action  lies  where  a  party  makes 
such  a  claim  vexatiously,  and  without  probable  cause.     Those  cases 
where  a  party  who  disparages  the  title  of  another  makes  DO  claim 
himself,  fall,  as  will  be  seen,  under  a  very  different  consideration. 

(r)  Sty.  iU. 


CHAPTER   XIII. 


Malice  in  Fact. 


[  *292  *In  the  next  place,  when  do  the  occasion  and  circum- 

stances of  the  publication  afford  a  qualified  defence  de- 
pendent on  the  absence  of  express  malice  ?  In  other  words,  when 
is  express  malice  or  malice  in  fact  essential  to  the  right  of  action  ? 
The  extensive  principle  which  governs  this  class  of  cases,  where 
the  existence  of  express  malice  is  a  civil  responsibility,  comprehends 
all  where  the  author  of  the  alleged  mischief  acted  in  the  discharge 
of  any  public  or  private  duty,  whether  legal  or  moral,  which  the 
ordinary  exigencies  of  society,  or  his  own  private  interest,  or  even 
that  of  another  called  upon  him  to  perform,  but  where  the  occasion 
does  not  furnish  an  absolute  defence,  independently  of  the  question 
of  intention,  as,  on  the  one  hand,  it  would  be  contrary  to  common 
convenience  to  fetter  mankind  in  their  ordinary  communications  by 
the  apprehension  of  vexatious  litigation  ;  so,  on  the  other,  would  it 
be  highly  mischievous  to  allow  men  to  inflict  the  most  cruel  injuries 
to  reputation  and  character  with  impunity,  under  the  cloak  and 
pretence  of  discharging  some  duty  to  themselves  or  to  society, 
when  they  were,  in  fact,  actuated  by  the  most  malicious 
[  *293  ]  intentions.  The  *law,  therefore,  in  such  instances,  and 
as  it  seems,  most  wisely,  makes  the  issue  to  depend  on 
the  existence  or  absence  of  express  malice ;  and  thus  an  ample 
shield  of  protection  is  extended  to  all  who  act  fairly  and  prudently, 
in  order  that  men  may  not  be  deterred,  by  the  fear  of  an  action  or 
prosecution,  from  making  communications  which  are  either  impor- 
tant to  themselves  or  beneficial  to  the  public. 

Among  the  most  prominent  of  the  decisions  comprehended  within 
the  present  class  are  those  which  have  arisen  from  actions  brought 
by  servants  against  masters. 

The  giving  a  character  of  a  servant  is  one  of  the  most  ordinary 


MALICE  IN  FACT.  293 

communications  which  a  member  of  society  is  called  on  to  make,  bat 
it  is  a  duty  of  great  importance  to  the  interests  of  the  public,  and  in 
respect  of  that  duty,  a  party  offends  grievously  against  the  inter 
of  tin-  community  in  giving  a  good  character  where  it  is  not  deserv- 
ed; or  against  justice  and  humanity  in  either  injuriously  refusiu 
give  a  character  (a),  or  in  designedly  misrepresenting  one  to  the 
detriment  of  the  individual. 

The  general  rule  is  that  where  a  master  gives  a  character  of  a 
servant,  unless  the  contrary  be  expressly  proved,  it  will 
be  presumed  that  the  "character  was  given  without  mal-       "294  ] 
ice  (6),  and  the  plaintiff,  to  support  the  action,  must 
prove  that  the  character  was  both  falsely  and  maliciously  given  [1]. 

An  action  was  brought  (c)  by  the  plaintiff  for  publishing  the  fol- 
lowing letter  to  one  Collier,  respecting  the  plaintiff 's  character  as  a 
servant :  "  Two  days  I  gave  him  money  to  go  into  the  city  and  buy 
books.  When  he  came  home,  I  desired  him  to  reckon  up  his  ac- 
count; he  did  so.  But  being  one  day  more  curious  than  1  some- 
times was,  I  looked  over  his  account,  article  by  article  :  and  in  one 
book  I  well  knew  the  price  of,  I  found  he  had  charged  m ie  shil- 
ling more  than  it  cost,  and  that  shilling  he  kept  in  his  pocket.  The 
next  day,  the  very  same  affair;  and  both  these  days  my  neighbor 
Mctcalf  was  in  my  shop,  and  knows  it  well,  and  said  he  would  not 
keep  such  a  man  a  day,  or  something  to  that  purpose.  Two  maga- 
zines he  charged  two  shillings  for  binding,  the  people  received  no 
more  than  Is.  8d.  and  this  lean  prove."  A  verdict  was 
*found  for  the  plaintiff  on  one  of  the  counts  of  the  dec-  [  *295  ] 
laration,  containing  the  above  letter,  subject  to  the  opin- 
ion of  the  court  on  the  following  case  : 

The  plaintiff  was  brother-in  law  to  Mr.  Collier  :  he  was  in  the 
service  of  the  defendant,  and  was  by  him  turned  away.  Rogers,  to 
whom  the  plaintiff  was  recommended  to  be  taken  as  a  servant,  ap- 

(«)  No  action  will  lie  against  a  master  tween  man  and  man  should  be  privileged « 

for  refusing  to  give  a  charaoter.    Canute,  if  made  bona  fide,  and  without  malice.    If, 

Bird,  3  Esp  C.  204.  however,  the  party  giving   the   ohai 

(6)  Burr.  2425.     Edmonson  r.  Stephen-  knows  what  h  untrue,  that  may 

son,  B.  N.  P.  8.     Lord  Ellenborongh,  in  deprive  him  of  the  protection    which  t lie 

Hodgson  v.  Scarlett,  1  B.  &  A.  240,  ob-  law  throws  around  each  communications. 
served,  "In  the  case  of  master  and  Ber-        (i  )  Weathers!  d<    .  .  Hawkins,  1  T.  EL 

vant,  the  convenience  of  mankind  requires  110. 
that  what  is  said  in  fair  communication  be- 

[1]  But  see  Patterson  v.  Jones,  8  B.  and  C.  578,  also  note  (a  a)  post,  page  301. 


295  CIVIL  REMEDY— OCCASION. 

plied  to  the  defendant  for  a  character,  which  not  being  advanta- 
geous, but  to  the  effect  stated  in  the  declaration,  he  (Rogers,)  did 
not  take  him.  Collier,  upon  this,  repeatedly  called  upon  the  de- 
fendant, upon  which  the  letter  stated  in  the  declaration  was  written, 
with  an  intent  to  prevent  an  action  by  the  plaintiff  for  the  words  by 
the  defendant  to  Rogers.  The  writ  was  sued  out  on  the  very  day 
the  letter  was  written. 

The  question  for  the  opinion  of  the  court  is,  whether  this  action 
lies. 

Lord  Mansfield,  C.  J.  "  I  have  held  more  than  once,  that  an 
action  will  not  lie  by  a  servant  against  his  former  master,  for  words 
spoken  by  him  in  giving  a  character  of  the  servant. 

"  The  general  rules  are  laid  down  as  Mr.  Wood  (the  plaintiff 's 
counsel)  has  stated  ;  but  to  every  libel  there  may  be  a  necessary  or 
implied  justification  from  the  occasion,  so  that  what,  taken  abstract- 
edly, would  be  a  publication,  may,  from  the  occasion, 
[  *296  ]  prove  to  be  none,  as  if  it  were  read  in  *a  judicial  pro- 
ceeding. Words  may  also  be  justified  on  account  of 
their  subject  matter,  or  other  circumstances.  In  this  case,  instead 
of  the  plaintiff's  shewing  it  to  be  false  and  malicious,  it  appears  to 
be  incident  to  the  application  by  Rogers  to  the  master  of  the  ser- 
vant ;  and  the  letter  was  written  to  the  brother-in-law  of  the  plain- 
tiff, for  the  express  purpose  of  preventing  an  action  being  brought." 

Buller,  J.  "  This  is  an  exception  to  the  general  rule,  on  account 
of  the  occasion  of  writing  the  letter.  Then  it  is  incumbent  on  the 
plaintiff  to  prove  the  falsehood  of  it :  and  in  actions  of  this  kind, 
unless  he  can  prove  the  words  to  be  malicious  as  well  as  false,  they 
are  not  actionable." 

Judgment  for  the  defendant. 

In  the  case  of  Rogers  v.  Sir  Gervase  Clifton  Bart.  (cT),  the  fol- 
lowing facts  appeared  in  evidence.  The  plaintiff  having  been  hired 
as  a  servant  by  the  defendant,  lived  about  six  months  in  his  service, 
when  the  latter  turned  him  away  without  giving  him  a  month's  warn- 
ing ;  in  consequence  whereof,  the  plaintiff,  conceiving  himself  en- 
titled to  a  month's  wages,  refused  to  quit  the  service  without  being 
paid  that  sum.  On  this"  refusal,  the  defendant  procured  an  officer 
from  the  public  office  to  put  the  plaintiff  out  of  the  house, 
[  *297  ]  and  employed  his  attorney  to  settle  his  *wages  with  him. 
Immediately  after  this,  the  defendant,  who  was  going  into 
the  country, called  on  Mr.  Holland,  with  whom  the  plaintiff  had  pre- 

(<*)  3  B.  &  P.  587. 


MA  LICK  IN  FACT. 

viously  lived,  to  inform  him  that  the  plaintiff  had  behaved  in  an  im- 
pertinent and  scandalous  manner:  that  lie  the  defendant  had  dis- 
charged him  from  his  service,  when  the  plaintiff  refused  to  go  with- 
out a  month's  wages ;  and  he  therefore  desired  Mr.  Holland  not  to 
give  him  another  character.  While  the  plaintiff  was  in  the  country 
he  offered  himself  to  a  Mr.  Hand,  stating  that  he  had  lived  with  the 
defendant.  Upon  which,  Mr.  II  md  wrote  to  the  defendant  for  a 
character;  and  received  the  following  answer: 

'•  Sir, — In  answer  to  your's.  which  came  to  hand  yesterday,  1 
beg  leave  to  acquaint  you,  that  Thomas  Rogers  did  aot  live  with  me 
six  months,  as  he  has  told  you,  and  I  wish  1  had  never  taken  him 
into  my  house,  as  he  is  a  bad  tempered,  lazy,  impertinent  fellow,  and 
has  given  me  a  great  deal  of  trouble,  as  1  was  obliged  to  send  an 
officer  from  the  Marlborough  street  Police  Office,  to  put  him  and  his 
things  out  of  my  house,  and  also  to  employ  Mr.  Barnet,  my  attor- 
ney, of  Soho-square,  to  settle  his  wages  ;  as  I  look  upon  it  he  will 
take  any  advantage  he  can. 

"  I  am,  Sir,  your  most  obedient  humble  servant, 

"  Gervase  Clifton." 

*Upon  receipt  of  this  letter,  Mr.  Hand  refused  to  take 
the  plaintiff  into  his  service.      It  appeared  that  Mr.  Hoi-  f    '298    I 
land  never  was  applied  to  for  a  character  of  the  plaintiff, 
after  the  communication  made  to  him  by  the  defendant ;  and  Mr. 
Holland  stated,  that  without  such  communication  he  should  have  de- 
clined giving  another  character  to  the  plaintiff.     The  plaintiff  also 
proved,  by  servants  of  the  family,  that  while  in  the  defendant's  ser- 
vice he  had  conducted  himself  well,  and  that  no  complaints  of  the 
nature  ascribed  to  him  in  the  defendant's  letter  had  all  that  time  ex- 
isted.    The  jury  found  a  verdict  for  the  plaintiff  with  £20  dams 
but  liberty  was  reserved  to  the  defendant  to  have  a  nonsuit  entered. 

After  the  case  had  been  argued,  Lord  Alvanley,  0.  J.  said.  ••  If 
it  were  to  be  understood,  that  whenever  a  master  gives  a  bad  char* 
actcr  to  a  servant  who  has  quitted  his  service,  he  may  be  forced  by 
the  servant,  in  justification  of  such  conduct  as  a  master,  to  prove  the 
particulars  which  he  has  Btati  1  respecting  the  Bervant,  it  would  be 
impossible  for  any  master,  (so  understanding  the  law,  at  Leasi  with 
any  regard  to  his  own  safety)  to  give  any  character  but  the  most 
favorable  to  a  servant,  and  consequently  impossible  for  a  Bervant, 
not  entitled  to  the  most  favorable  character,  to  obtain 
any  new  place.     In  the  two  "cases  of  Edmondson  v.   Ste-     [  '-'.".>  j 

Vol.  I.  25 


299  CIVIL  REMEDY— OCCASION. 

venson  (ej  and  Weatherstone  v.  Hawkins  (/),  the  law  upon 
this  subject  appears  to  me  to  be  laid  down  as  clearly  as  can  be 
wished.  Unquestionably  the  master,  who  has  given  a  bad  character 
of  a  servant  to  persons  enquiring  after  his  character,  is  not  bound  to 
substantiate  by  proof  what  he  has  said  ;  but  it  is  equally  clear,  that 
the  servant  may,  if  he  can,  prove  the  character  to  be  false,  and  the 
question  between  the  master  and  servant  will  always,  in  such  case,  be, 
whether  what  the  former  has  spoken  concerning  the  latter  be  mali- 
cious and  defamatory.  In  this  case,  we  are  to  consider  whether  the 
evidence  adduced  by  the  plaintiff  was  sufficient  to  be  left  to  the  jury. 
His  lordship,  after  stating  the  evidence,  proceeded  to  observe,  that 
the  circumstance  of  the  plaintiff's  refusal  to  quit  his  master's  house 
till  his  wages  had  been  paid,  was  the  only  act  of  impertinence  provi- 
ed  against  him  ;  and  that  the  defendant  was  not  called  upon  by  that 
single  act  to  seek  out  Mr.  Holland,  and  officiously  to  state  what  he 
did  ;  that  if  a  servant  were  strongly  suspected  of  having  committed 
a  felony  whilst  in  his  master's  service,  it  would  be  the  master's  duty 
to  warn  others  from  taking  him  into  their  service ;  but 
[  *300  ]  that,  in  the  principal  case,  the  offence  imputed  to  *the 
plaintiff  appeared  to  be  of  a  trivial  nature.  His  lordship 
concluded  by  saying,  that  he  should  have  grievously  invaded  the 
province  of  a  jury,  had  he  not  left  it  to  them  to  say  whether,  con- 
sidering all  the  circumstances  of  the  case,  the  defendant's  conduct 
was  not  malicious,  and  that  he  did  not  consider  himself  at  liberty  to 
disturb  the  verdict  they  had  given. 

Rooke,  J.  was  of  the  same  opinion,  and  wished  it  to  be  under- 
stood as  his  opinion,  that  a  master  may  at  any  time,  whether  asked 
or  not,  speak  of  the  character  of  his  servant,  provided  that  he 
speak  in  the  honesty  of  his  heart ;  and  that  an  action  cannot  be 
maintained  against  him  for  so  doing  ;  at  the  same  time,  masters  are 
not  warranted  in  speaking  ill  of  their  servants  from  heat  and  passion. 
Chambre,  J.  referred  to  the  case  of  Lowry  v.  Aikenhead  (g), 
before  Lord  Mansfield.  In  that  case,  the  rule  laid  down  by  Lord 
Mansfield  was,  "  That  where  a  person,  intending  to  hire  a  servant, 
applies  to  a  former  master  for  a  character,  the  master  is  not  bound 
to  prove  the  truth  of  the  character  he  gives  ;  for  what  he  speaks  of 
the  servant,  he  does  not  speak  officiously,  but  only  discloses  that 
which  rests  in  his  knowledge  alone  ;  but  that  where  a  master  speaks 
ill   of  a  servant,   without  any   previous   application   having  been 

(e)  B.  N.  P.  8.  (/  )  1  T.  R.  110.  (g)  Mich.  8  G.  3. 


MALICE  IX   FACT. 

*madc  to  him,  there  he  must  plead  and  prove  the  truth    [  *301  ] 
of  the  character  in  justification. 

And  the  rule  was  discharged. 

It  appears,  therefore,  to  be  fully  established,  that  a  servant,  in 
an  action  againsl  a  former  master,  must  prove  express  malice. 

It  seems  to  have  been  laid  down  generally  by  Lord  Mansfield,  in 
the  case  cited  by  Mr.  Justice  Chambre,  that  where  a  master,  un- 
asked, gives  a  bad  character  of  a  servant,  he  mav  justify  as  in  ..titer 
cases;  and  though  Mr.  J.  Rooke  seema  to  have  expressed  an  opin- 
ion somewhat  different,  there  can  he  no  doubt  thai  the  manifestation 
of  forward  and  officious  zeal  on  the  part  of  a  defendant,  who.  i>n- 
invited,  gives  a  character  to  the  prejudice  of  his  former  servant, 
would  be  a  material  guide  to  a  jury  in  ascertaining  his  real  mo- 
tive [  a  a  ]. 

Where  a  plaintiff,  knowing  the  character  which  his  master  will 
give,  procures  it  to  be  given  for  the  sake  of  founding  an  action  v. 
it,  he  will  not  be  allowed  to  recover  (/*)• 

Many  other  cases  may  be  referred  to  as  illustrative  of  tli 
principle  that  a  publication  warranted  by  an  occasion  apparently 
beneficial  and  honest  is  not  actionable  in  the  absence  of  expr 
malice. 

The   defendant   who    was    sergeant   in    a   volunteer   corps,  of 

[<x  a]  In  Pattison  v.  Jones,  8  Barn,  and  In  the  same  case,  the  lord  chief  justice 

Cres.  578,  the  master  wrote  a  first  letter  on  evidence  being  tendered  of  the  truth  of 

without  a  previous  application  having  been  the  statements   made  in  the  letter,  in  unlet 

made  for  a  character  of  the  servant,  but  to  show  that  the  communication  was 

wrote  a  second  in  answer  to  inquiries  made  bona  fide,  expn                    doubt  whether 

of  him  as  to   the    plaintiff's    character.  Buoh  evidence  was  receivable  under  the  plea 

Lord  TenterJen,  C.  J.  left  it  to  the  jetty  to  of  the  general  issue,  but   reoeivi 

say,  whether  the  communication  contained  dence. 

in  that  letter  was  made  by  him  bona  fide,  in  the  case  of  Child  r.  Affleck,  9  B.  aud 

acting  under  a  belief,  that  he  was  disoharg-  C  408.  the  defendant   had 

ing  a  duty  which  he  owed  to  the  party  who  f"r:l  character,  st  tted,  in  a  written  ai  - 

was  about  to  take  the  plaintiff  into  his  ser-  that  the  plainthl  had,  whilst  in  her  service, 

vice,  or  whether  it  was  made  maliciously,  conducted  herself  disgracefully,  and  that 

With  an  intention  of  doing  an  injury  to  t lie  »he  had    since    been  a    prostitute;    and   a 

plaintiff;  and  the  jury  having  found  that  similar  statement  had  been  made  by  the 

the  communication  was  maliciously  made,  defendant                                        -      ended 

the  court  refused  to  disturb  the  verdict.  the  plaintiff  to  her;  it  was  held,  that   they 

Littledale,  J.  observed,  "  At  all  events,  were  privileged  oomnuw               .id  that 

where  the   master  volunteers  to  give  the  the  plaintiff   was  properly    nonsuited    fur 

character,  stronger  evidenoe  will  be  re-  want  of  proof  of  malice. 

quired  that  he  acted  bona  fide,  than  in  the  (/«)  Per  Lord  Alvanley,  8  B.  and  P.  502. 

case  where  he  has  given  the  character  after  King  p.  Waring,  et  D                  I  .  13. 
being  required  to  do  so." 


301  CIVIL  REMEDY-  OCCASION. 

[  *302  ]  *which   the   plaintiff  also  was   a  member,   represented 
to  the  committee,  by  whom  the  general  business  of  the 
corps  was  conducted,  that  the  plaintiff  was  an  unfit  and  improper 
person  to  be  permitted  to  continue  a  member  of  the  corps. 

The  words  charged  in  the  declaration  were,  that  the  defendant 
had  said  that  the  plaintiff  had  been  the  executioner  of  the  King  of 
France,  and  that  he  had  clapped  his  hands,  rejoicing  at  the  event, 
adding,  that  France  would  then  be  one  of  the  first  countries  in  the 
world. 

It  appeared  in  evidence,  that  the  plaintiff  was  a  Frenchman,  and 
that  the  defendant  had  not  made  use  of  the  words  publicly,  but  had 
communicated  them  to  the  officers  of  the  corps,  who  constituted  the 
committee  for  its  regulation. 

Lord  Ellenborough  said,  that  it  was  not  to  be  allowed  that  such 
an  action  could  be  sustained.  It  was  a  communication  made  upon 
a  most  important  matter  for  their  consideration,  whether  foreigners, 
the  natives  of  a  country  in  open  war  with  us,  were  to  learn  the  use 
of  arms  in  a  country  threatened  to  be  invaded  by  the  other.  The 
action  was  most  ill  advised  and  improper. 

In  Johnson  v.  Evans  (i),  the  words  were,  "  She  is  a.  thief,  and 
tried  to  rob  me  of  part  of  her  wages."  It  appeared, 
[  *803  ]  upon  the  trial,  that  the  *plaintiff  had  been  servant  to  the 
defendant.  Upon  a  dispute  taking  place  he  discharged 
her,  and  some  difference  arising  respecting  the  payment  of  her 
wages,  he  charged  her  with  having  attempted  to  cheat  him  respect- 
ing her  wages,  and  spoke  the  words  as  laid ;  but  the  plaintiff  failed 
in  proving  them  to  have  been  spoken  at  that  time.  Having,  how- 
ever, sent  for  a  constable,  in  order  to  take  her  into  custody,  he  made 
use  of  the  same  words  to  the  constable  when  he  came,  to  whom  he 
meant  to  have  given  her  in  charge,  but  which  in  fact  .he  did  not  do. 
The  constable  proved  the  words  as  spoken  ;  but  it  further  appeared, 
in  the  course  of  his  evidence,  that  the  words  had  been  spoken  by 
the  defendant,  addressed  to  him  in  his  character  of  constable,  and 
in  the  course  of  the  charge  and  complaint  which  the  defendant  made 
to  him  against  the  plaintiff. 

Lord  Eldon,  C.  J.  said",  that  the  evidence  given  of  the  speaking 
of  the  words  laid  in  the  declaration  was  not  such  as  to  induce  him 
to  direct  the  jury  to  find  a  verdict  for  the  plaintiff.  Words  used  in 
the  course  of  a  legal  or  judicial  proceeding,  however  hard  they 

(i)  3  Esp.  C.  32. 


MALICE  IX  FACT. 

might  bear  upon  tl  i  they  were  used,  were  no!  such  as 

would   support  a. i    action  for  Blander.      In  thi  .  they   were 

spoken  by  th  i  defendant  under  a  belief  of  tli  ad  when  lie 

.  iou1  i  i  proceed  legally  to  pnnish  it,  it  wonld  be  a 
matter  of  *public  inconvenience,  and  '304    ] 

ms  from  preferring  their  complaints  against  offenders, 
if  words  Bpoken  in  the  course  of  their  giving  charge  of  them,  or 
preferring  their  complaint,  should  lable.     Plaintiff 

nonsuited  [1]. 

Still  this,  it  aounts  to  a  prima  facie  defence  only,  liable 

to  be  overthrown  by  proof  of  express  malice  on  the  part  of  the  de- 
fendant, as  by  shewing  that  he  knew  at  the  time  that  the  charge  waa 
false.  In  Smith  v.  Hodgkins  (In.  the  case  was  this.  The  plaintiff 
assaulted  and  boat  the  defendant  on  the  highway.  The  defendant 
meeting  a  constable,  requested  him  to  take  charge  of  the  plaintiff; 
and  the  constable  refusing  to  arrest  the  plaintiff  unless  the  defend- 
ant would  charge  him  with  the  commission  of  a  felony,  the  defend- 
ant did  so,  and  judgment  was  given  on  demurrer  for  the  plaintiff ; 
the  court  observing,  that  there  was  no  ground  for  the  charge  of 
felony. 

And  where  property  has  been  actually  stolen  (I),  the  defendant 
is  not  warranted  in  the  communication  of  a  suspicion,  which  in  fact 
is  unfounded,  except  for  the  purpose  of  legal  injury  [a  a]. 

Under  this  class  of  communications  may  not  improperly  be  ranked 
those  publications  whose     professed  object  is  to  discuss,  for  the  in- 
formation of  the  public,  the  merits  of  the  literary  pro- 
ductions *of  the  day.     The  authors  of  these,  in  the  de-    [  "305  ] 
tcction  and  exposure  of  misrepresentations  in  fact,  false 
inferences,  vicious  principles  and  bad  taste,  undertake  tin'  discha 
of  a  most  difficult  and  important  public  duty,  and  in  return  are  pri- 
vileged in  the  most  unlimited  exercise  of  their  reasoning  po* 
and  of  their  talents  for  wit  or  Batire,  so  long  a-  it  is  confined  to  its 
legitimate  object,  the  merits  of  the  work  bcfon-  them,  and  is  not 

(fc)  Cro.  Car.  276.  true,  yet  a  letb  I  to  ■  ju  Ige  being 

(/)  Powell  v.   Plunket,  Cro.  Oar.     2  an    irregular    and    imp! 
Sed  vide  be  |  within  the 

[a  a]    Although    statements     made  ■_    I  oommooioations.   G 

regular  proceeding*  at  law  are  privilege!  v.  Hulmc,  3  C.  &  P.  626. 
if  bona  fide  made,  though  they  may  not  be 

[I]  Note  [1)  p.  251.  tupra.  See  also  Burlingha&  v.  Burlingham,  8  Cowcii,  41. 
Allen  v.  Cro/oot,  2  Wendell,  515,  and  Lathrop  v.  Hyde,  26  Id.  448. 

25* 


305  CIVIL  REMEDY— OCCASION. 

perverted  and  abused  for  the  purpose  of  personal  defamation  or  the 
gratification  of  private  malice. 

'  In  the  case  of  Sir  John  Carr  v.  Hood,  (m),  the  plaintiff  stated, 
in  his  declaration,'  that  he  had  been  the  author  of  several  productive 
publications,  called  &c.  but  that  the  defendant  intending  to  expose 
him  to  contempt  and  ridicule,  had  published  a  malicious  and  defama- 
tory libel  concerning  the  said  Sir  John,  entitled,  "  My  Pocket  Book 
or  hints  for  a  righte  merrie  and  conceited  Tour,  to  be  called,  The 
Stranger  in  Ireland  in  1805,  by  a  Knight    Errant."      The  same 
libel  containing  a  malicious  and  defamatory  print  of  and  concerning 
the  said  Sir  John  and  his  books,  called  "  Frontispiece,"  and  enti- 
tled, "  The  Knight  leaving  Ireland  with  regret ;  "  and  represent- 
ing, in  the  said  print,  a  certain  false,  scandalous,  malicious,  defama- 
tory, and  ridiculous  representation  of  the  said  Sir  John, 
[  *306  ]    *in  the  form  of  a  man  of  ludicrous  and  ridiculous  appear- 
ance, holding  a  pocket-handkerchief  to  his  face,  and  ap- 
pearing to  be  weeping  ;  and  also  a  certain  false,  malicious,  and 
ridiculous  representation  of  a  man  of  ludicrous  and  ridiculous  ap- 
pearance, following  the    representation  of  Sir  John,  representing 
a  man  loaded  with  and  bending  under  the  weight  of  three  large 
books,  one  of  them  having  the  word  Baltic  printed  on  the  back 
thereof,  and  a  pocket  handkerchief  appearing  to  be  held  in  one  of 
the  hands  of  the  said    representation   of  a  man,  and  the  corners 
thereof  appearing  to  be  held  or  tied  together  as  if  containing  some- 
thing therein,  with  the  printed  word  Wardrobe  depending  therefrom, 
for  the  purpose  of  rendering  the  said  Sir  John  ridiculous,  and  there- 
by meaning  that  one  copy  of  the  said  first-mentioned  book  of  the 
said  Sir  John,  and  two  copies  of  the  book  of  the  said  Sir  John  sec- 
ondly above-mentioned,  were  so  heavy  as  to  cause  a  man  to  bend 
under  the  weight  thereof ;  and  that  his  the  said  Sir  John's  wardrobe 
was  very  small,  and  capable  of  being  contained  in  one  pocket  hand- 
kerchief."    The  declaration  concluded  by  laying,  as  special  dam- 
age, that  Sir  John  had  been  prevented  from  selling  to  Sir  Richard 
Phillips,  for  £600,  the  copyright  of  a  book  of  which  the  said  Sir 
John  was  the  author,  containing  an  account  of  a  tour  of  the  said 

Sir  John  through  part  of  Scotland. 
[  *307  ]        *Lord  Ellenborough,  as  the  trial  was  proceeding,  inti- 
mated an  opinion,  that  if  the  book  published  by  the  de- 
fendant only  ridiculed  the  plaintiff  as  an  author,  the  action  could 
not  be  maintained. 

(ot)  1  Camp.  N.  P.  354. 


MALICE  IX  FACT. 

Harrow,  for  the  plaintiff,  allowed,  that  when  his  client  cam 
ward  as  an  author,  he  subjected  himself  to  the  criticism  of  all  who 
might  be  disposed  to  discuss  the  merits  of  his  works,  but  that  criti- 
cism must  be  fair  and  Liberal ;  its  object  ought  to  be  to  enlighten  the 
public,  and  to  guard  them  against  the  supposed  bad  tendency  of  a 
particular  publication  presented  to  them,  not  to  wound  the  feelings 
ami  ruin  the  prospects  of  an  individual;  it*  ridicule  was  empl 
it  should  have  Bome  bounds.  While  a  Liberty  was  granted  of  ana- 
lyzing literary  productions,  and  pointing  out  their  d  11  he 
must  he  considered  as  a  libeller,  whose  only  object  was  to  hold  up 
an  author  to  the  laughter  and  contempt  of  mankind.  A  man  with 
a  wen  upon  his  neck  perhaps  could  not  complain  if  a  Burgeon,  in  a 
scientific  work,  should  minutely  describe  it.  and  .consider  its  nature 
and  the  means  of  dispersing  it ;  but  Burely  ho  might  support  an  ac- 
tion for  damages  against  any  one  who  should  publish  a  book  to  make 
him  ridiculous  on  account  of  his  infirmity,  with  a  caricature  print 
as  a  frontispiece.  The  object  of  the  book  published  by 
the  defendant  clearly  was,  *by  means  of  immoderate  ridi-  [  *308  ] 
cule,  to  prevent  the  sale  of  the  plaintiff's  works,  and 
entirely  to  destroy  him  as  an  author.  In  the  late  case  of  Tabert 
v.  Tipper  (ra),  his  lordship  had  held,  that  a  publication  by  no  means 
so  offensive  or  prejudicial  to  the  object  of  it,  was  libellous  and 
actionable. 

Lord  Ellcnborough.  "  In  that  case,  the  defendant  had  falsely 
accused  the  plaintiff  of  publishing  what  he  had  never  published; 
here  the  supposed  libel  has  only  attacked  those  works  of  which  Sir 
John  Carr  is  the  avowed  author;  and  one  writer,  in  exposing  tin: 
follies  and  errors  of  another,  may  make  use  of  ridicule,  however 
poignant.  Ridicule  is  often  the  fittest  weapon  that  can  be  employed 
for  such  a  purpose.  If  the  reputation  or  pecuniary  interests  of  the 
person  ridiculed  suffer,  it  is  damnum  ubsi/uc  injuria.  Where  is  the 
liberty  of  the  press,  if  an  action  can  be  maintained  on  such  princi- 
ples ?  Perhaps  the  plaintiff's  Tour  through  Ireland  is  now  unsale- 
able, but  is  he  to  be  indemnified  by  receiving  a  compensation  in 
damages  from  the  person  who  may  have  opened  the  eyes  of  th<'  public 
to  the  bad  taste  and  inanity  of  his  composition  ':  Who  would  have 
bought  the  works  of  Sir  Robert  Filmer,  after  he  had  been 
refuted  by  Mr.  Locke?  *But  shall  it  be  said,  that  he  [  V>09  ] 
might  have  sustained  an  action  for  defamation  against 

(n)  Vid.  p.  311. 


309  CIVIL  REMEDY— OCCASION. 

that  great  philosopher,  who  was  laboring  to  enlighten  and  amelio- 
rate mankind  ?  We  really  must  not  cramp  observations  upon  au- 
thors and  their  works  ;  they  should  be  liable  to  criticism,  to  exposure, 
and  even  to  ridicule,  if  their  compositions  be  ridiculous  ;  otherwise, 
the  first  who  writes  a  book  on  any  subject  will  obtain  a  monopoly 
of  sentiment  and  opinion  respecting  it.  This  would  tend  to  the 
perpetuity  of  error.  Reflection  on  personal  character  is  another 
thing.  Show  me  an  attack  on  the  moral  character  of  the  plaintiff, 
or  any  attack  upon  his  character,  unconnected  with  hi6  authorship, 
and  I  shall  be  as  ready  as  any  judge  who  ever  sat  here  to  protect 
him ;  but  I  cannot  hear  of  malice  on  account  of  turning  his  works 
into  ridicule." 

The  counsel  for  the  plaintiff  complaining  of  the  unfairness  of  the 
publication,  and  particularly  of  the  print  affixed  to  it,  the  trial  pro- 
ceeded. 

The  Attorney-general  having  addressed  the  jury  on  the  behalf  of 
the  defendants, 

Lord  Ellenborough  said,  every  man  who  publishes  a  book  commits 
himself  to  the  judgment  of  the  public,  and  any  one  may  comment 
upon  hjs  performance.  If  the  commentator  does  not  step  aside  from 
the  work,  or  introduce  fiction  for  the  purpose  of  condemnation,  he 
exercises  a  fair  and  legitimate  right.  In  the  present  case, 
[  *310  ]  had  *the  party  writing  the  criticism  followed  the  plaintiff 
into  domestic  life  for  the  purposes  of  slander,  that  would 
have  been  libellous  ;  but  no  passage  of  this  sort  has  been  produced, 
and  even  the  caricature  does  not  affect  the  plaintiff,  except  as  the 
author  of  the  book  which  is  ridiculed.  The  works  of  this  gentle- 
man may,  for  aught  I  know,  be  very  valuable,  but,  whatever  their 
merits,  others  have  a  right  to  pass  their  judgment  upon  them, — to 
censure  them  if  they  be  censurable,  and  to  turn  them  into  ridicule 
if  they  be  ridiculous.  The  critic  does  a  great  service  to  the  public, 
who  writes  down  any  vapid  or  useless  publication,  such  as  ought 
never  to  have  appeared.  He  checks  the  dissemination  of  bad  taste, 
and  prevents  people  wasting  both  their  time  and  money  upon  trash. 
I  speak  of  fair  and  candid  criticism  ;  and  this  every  one  has  a  right 
to  publish,  although  the  author  may  suffer  loss  from  it.  Such  a  loss 
the  law  does  not  consider  as  an  injury,  because  it  is  a  loss  which 
the  party  ought  to  sustain.  It  is,  in  short,  the  loss  of  fame  and 
profit  to  which  he  was  never  entitled. 

"  Nothing  can  be  conceived  more  threatening  to  the  liberty  of  the 
press  than  the  species  of  action  before  the  court.     We  ought  to  re- 


.MALICE  IN  FACT  310 

sist  an  attempt  against  free  and  liberal  criticism  at  the  threshold. " 
The  Chief  Justice  concluded  by  directing  the  jury,  that 
if  the  writer  of  the  publication  'complained  of  had  not  j  ,;;il  ] 
travelled  out  of  the  work  be  criticised  for  the  purpose  of 
slander,  the  action  would  not  lie;  but  if  they  could  discover  in  it 
anything  personally  slumbrous  against  the  plaintiff,  unconnected 
with  the  works  he  hud  given  to  the  public,  in  that  cum-  he  hud  a 
good  cause  of  action,  and  they  would  award  him  damag  ird- 

ingly.     Verdict  for  the  defendant  (o). 

In  the  case  of  Tabert  v.  Tipper  alluded  to  in  'the  312  | 
preceding  one  (//),  the  action  was  brought  for  a  libel  on 
the  plaintiff,  contained  in  a  periodical  work  called  "  The  Satirist,  or 
Monthly  Meteor,"  insinuating  that  the  plaintiff  (who  was  a  vender 
of  children's  books)  had  published  and  vended  bonks  of  an  improper 
and  immoral  tendency. 

Upon  the  question,  whether  a  witness  ought  to  be  cross-examined 
as  to  the  defendant's  having  published  particular  books, 

Lord  Ellcnborough  observed,  "  The  main  question  here  is.  quo 
animo  the  defendant  published  the  article  complained  of;  whether 
he  meant  to  put  down  a  nuisance  to  public  murals,  or  to  prejudice  the 
plaintiff.  To  ascertain  this,  it  is  material  to  know  the  general 
nature  of  the  defendant's  publications,  to  which  the  libel  alludes, 
and  I  therefore  think  that  the  evidence  is  receivable.  The  plaintiff 
is  bound  to  show  that  the  defendant  was  actuated  by  malice,  and 
the  defendant  discharges  himself  by  proving  the  contrary.  Liberty 
of  criticism  must  be  allowed,  or  we  should  neither  have  purity  of 

(o)  In  the  case  of  Stuart  v.   Lovell,  2  were  open  to  criticism  and  ridicule,  in  the 
Starkie'8  C.  73,  the  plaintiff  being  one  of  same  way  as  those  of  any  other  author,  but 
the  proprietors  of  the  Courier  newspaper,  that  the  privilege  did  not  extend  to    ilum- 
brought  his  action  against   the  defendant  nioua  remarks  on  the   private  character  of 
and  the  editor  of  the  Statesman:  Lord  El-  the  individual.     In  that  respect  the  editor 
lenborough,    in   summing   up   to  the  jury,  of  a                   'enjoyed   t: 
observed,  "  In  the  first   the    plaintiff  was  taction  in  common  with  every  other  subject- 
described  as  the  prostituted  Courier,  and  "  Since  then,  the  defendant   in  tin- 
his  full  blown  baseness  and   infamy  were  bad  Btigmatiied  the  plaintiff  aa  thevene- 
represented    as    holding    him    fast  to  his  rable  apostle   of  tyranny                       MUD, 
present  connections,   and  preventing  him  and  afl  a  man  whose  foil 
from  forming  new  ones.     It  was  certainly  mil  infamy   held    him  fist    to    fa 
competent  to  one  public  writer  to  criticise  com                              they    left  him  wi 
another   exerting  his     talents  in    all   the  the  power  of  forming  new  ones;  in  all  this, 
latitude   of  free  communication  belonging  he  undoubtedly  had                      .  the  limits 
to  a  public  writer,  and  so  it  appeared   to  which  had  been  drawn,  and  ly  which  his 
Lord  Kenyon,   in  the  case  of  Harriot  v.  conduct  ought  to  have  been  I 
Stuart,  1  Esp.  c.  487.     That  the  opinions  (p)  1  Camp.  G 
and  principles  of  a    controversial   writer 


312  CIVIL  REMEDY— OCCASION. 

taste  nor  of  morals.  Fair  discussion  is  essentially  ne- 
[  *313  ]    cessary  to  the  truth  of  history  and  the  advancement  *of 

science.  That  publication,  therefore,  I  shall  never  con- 
sider as  a  libel,  which  has  for  its  object  not  to  injure  the  reputation 
of  any  individual,  but  to  correct  misrepresentations  of  fact,  to  refute 
sophistical  reasoning,  to  expose  a  vicious  taste  in  literature,  or  to 
censure  what  is.  hostile'  to  morality." 

But  in  the  same  case  it  appeared  that  the  libel  falsely  imputed  to 
the  plaintiff  the  publication  of  some  silly  verses  of  an  improper 
tendency,  which  were  specified  in  the  libel,  and  set  forth  in  the  dec- 
laration ;  and  it  was  allowed  on  the  part  of  the  defendant,  that  the 
plaintiff  had  not  published  them,  bu£it  was  contended  that  they  were 
a  fair  specimen  of  his  publications. 

Lord  Ellenborough,  however,  informed  the  jury,  that  it  was 
certainly  actionable,  gravely  to  impute  to  a  bookseller  having  pub- 
lished a  poem  of  this  sort,  to  which  he  was  a  stranger ;  as  the  evi- 
dent tendency  of  the  unfounded  imputation  was  to  hurt  him  in  his 
business. 

In  the  case  of  Heriot  v.  Stuart  (q),  it  was  held  that  no  action 
was  maintainable  for  asserting  in  a  newspaper  that  another  public 
newspaper  was  the  most  vulgar,  ignorant  and  scurrilous  journal  ever 

published  in  Great  Britain.  But  subsequent  words,  al- 
[  *314  ]    leging  that  it  was  the  lowest  paper  in  circulation,  *were 

deemed  actionable,  since  they  affected  the  sale  and  profits 
to  be  made  by  advertising. 

In  the  case  of  Dibdin  v.  Bostock  (V),  which  was  an  action  for 
publishing  a  paragraph  in'  a  newspaper,  stating  that  the  songs  at  a 
place  of  public  entertainment  were  not  of  the  plaintiff's  composition 
as  they  professed  to  be,  and  representing  the  performances  as  de- 
spicable, and  as  gaining  no  applause  except  from  persons  hired  for 
the  purpose.  Lord  Kenyon  observed,  "The  editor  of  a  public 
newspaper  may  fairly  and  candidly  comment  on  any  place  or  species 
of  public  entertainment,  but  it  must  be  done  fairly,  and  without 
malice  or  view  to  injure  or  prejudice  the  proprietor  in  the  eyes  of 
the  public ;  if  so  done,  however  severe  the  censure,  the  justice  of 
it  screens  the  editor  from  legal  animadversion ;  but  if  it  can  be 
proved  that  the  comment  is  unjust,  is  malevolent,  or  exceeding  the 
bounds  of  fair  opinion,  it  is  a  libel  and  actionable."  [a  a]  [1] 

(q)  1    Esp.  C.  4S7.  and  Malkin,  187,  on  the  trial  of  an  action 

(r)  1  Esp.  C.  29.  for  an  alleged  libel  concerning  a  picture  of 

[a  a]  In  Thompson  v.  Shackell,  1  Moody    the  plaintitf  's  exhibited  at  Somerset  House, 


MALICE  IX   LAW. 


314 


In  the  late  case  of  Dunne  \.  Anderson  (*)>  ''  Beemsto  have 
been  doubted  whether  the  plaintiff,  by  pri  petition  to  parlia- 


d  escribing  it  as  a  mere  daub,  Bnr,  «'  J. 

left  it  to  the  jury  to  say  whether  the  pub- 
lication vr&safair  and  temperate  criticism 
on  the  painting  of  the  plaintiff,  or  was 
made  the  vehicle  of  personal  malignity 
towards  the  plaintiff.  He  added,  "  I  my- 
self have  acted  on  the  doctrine  of  my  Lord 
Ellenborough  in  the  case  referred  t  . 
v.  Hood,)  though  I  do  not  go  quite  so  far 
B8  he  did  in  that  ease,  because  I  think  no 
personal  ridicule  of  the  author  is  justifi- 
able; but  if  this  be  really  an  honest  criti- 
cism, and  no  more,  the  defendant  is  en- 
titled to  your  verdict."  Verdict  for  the 
defendant. 

In  the  case  of  Sonne  v.  Knight,  1  M.  & 
M.   71,  the   plaintiff,   an   architect, 
plained  of  a  libel  published  of  him  in  his 
|  inn;    the   alleged  libel  professed   to 

give  an  account  of  a  new  order  of  architec- 
ture, called  the  Bcetian  Order,  stating  it  to 
have  been  invented  by  the  plaintiff,  and 
illustrated  the  new  order  by  examples  of 
such  buildings,  all  the  buildings  instanced 
being  the  works  of  the  plaintiff.  Lord 
Tenlcrden,  in  summing  up  to  the  jury, 
said,  "  This  publication  professes  in  sub- 
stance to  be  a  criticism  on  the  architectural 
of  the  plaintiff.  On  such  works,  as 
well  as  on  literary  product] 


has  a  right   to   express  his  opini 

te   that 
opinion  may  I 

the  merits  of  the  author  or  arti.-t,  the  per- 
son  entertaining  it    is  not   ]  reclude  1   by- 
law  from    its    fair,  B,   and  tcm- 
It    may  be   lairly  and 

h 

the   medium   of  ridicule.     In  the   ; 
case,  tl  only  stroi 

ertheh  bs,   it  y<  a  think  I 

ble,  and  • 
muy  not  be  correct,  the  defendant  will  be 
entitled  to  your  verdict  ;  if  you  think  it 
unfair  and  intemperate,  and  writtui  with 
the  intention  and  for  the  purpose  of  in- 
juring the  plaintiff  in  his  profession,  by 
imputing  to  him  that  he  acts  on  absurd 
principles  of  art,  you  will  find  for  the 
plaintiff."     Verdict  for  the  defci 

Whatever  can  be  fairly  said  of  th,e 
works  of  an  author  or  of  himself,  as  con- 
nected with  the  u-ork,  is  not  act: 
unless  it  appear  that,  under  the  pretext 
of  criticism,  the  party  takes  the  opportu- 
nity of  calumniating  the  author.  M'Ltod 
v.    IVakeley,  '.  811. 

(s)  o  Bing.  88.     But  sec  Lake  v.  Kimj, 
and  Kemp  v.  Gee,  supra  24  1,  246. 


[1]  In  Cooper  v.  Lawion,  SAdolph,  u  16,  the  libel  stated  that  the  plaintiff 

had  become  surety  for  a  petitioner  relative  to  an  election  for  a  member  of  parliament  of 
a  certain  borough,  and  bad  made  i  ath  that  he  was  qualified  in  point  of  property  to  be- 
aoh surety,  when  in   foot  lie  was  uot  able  to  paj  ;  The  authoi 

jked  why  the  plaintiff,  who  was  unconnected  with  the  borough,  in  reference  to  the 
election  of  the  member  of  parliament,  should  have  incurred  an  >  \[  i  sure  of  his  circum- 
,  and  gave  a  response  to  the  inquiry  by  b  lj  ing  "tl  <it  one  answer:  he 

is  hired/or  the  occasion."  The  defendant  pleaded  that  the  allegations  in  the  publica- 
tion were  true,  and  that  the  public  _s  iu  a  legal 
court,  together  with  a/fl«  afide  commentary  thereon.  Replication  Dt  injuria. 
Lord  De.\max,  C.  J.  told  the  jury   that   the   principal  quest*  D  IB  th<  whether 

the  plaintff  was.  qualified  to  be  a  Burety.    It  b  Ified  he  was  entitled  bo  dam- 

ages; if  not,  then  they  were  lo  say  whether  the  comments  which  imputed  to  him  that  he 
was  a  hired  swearer,  and  which  would  make  him  liable  for  a  wilful  false  statement  of 
facts,  were  comments,  and  if  they  should  think  them  not  fair  the  plaintiff  would  be  en- 
titled to  damages.     The  jury  found  for  the  defendant,  and  on  a  motion  by  the  plaintiff 


314  CIVIL  REMEDY— OCCASION. 

ment  against  the  practice  of  empiricism,  had  laid  himself  open  to 
a  criticism  on  his  composition  which  attempted  to  show  that  the  peti- 
tioner's ignorance  in  his  profession  was  manifest  on  the  face  of  his 

own  petition. 
[  *315  ]  *The  instances  already  cited,  in  illustration  of  the 
general  principle,  which  makes  the  occasion  operate  as  a 
defence,  unless,  express  malice  be  proved,  are  those  where  the  occa- 
sion consists  in  the  discharge  of  a  duty  of  a  public  nature.  The 
same  principle  it  is  next  to  be  seen  has  an  extensive  application, 
where  a  party  acts  fairly  and  bona  fide  in  the  prosecution  of  his  own 
or  even  another's  interest. 

It  has  been  seen,  that  where  a  publication  is  made  in  the   course 
of  a  judicial  proceeding,  no  action  for  slander  is  maintainable,  the 
very  occasion  furnishes  an  absolute  defence.     And  where  an  appli- 
cation is  made  for  the  purpose  of  obtaining  redress,  though  it  be  to 
a  party  who  has  no  direct  means  of  giving  relief,  yet,  if  the  appli- 
cant may  possibly  obtain  such  relief  indirectly,  and  he  act  bonajide, 
it  seems  that  he  is  not  liable  to  an  action.     In  the  case  of  the  King 
v.  Bayley  («),  the  defendant  had  addressed  a  letter  to  General 
Willes,  and  the  four  principal  officers  of  the  Guards,  to  be  by  them 
presented  to  the  king,  stating  that  the  prosecutor  had  obtained  from 
him  (the  defendant,)  a  warrant  for  the  payment  of  money  due  to 
him  from  the  government  under  promise  of  paying  the  defendant 
such  money,  and  that  the  prosecutor  had  received  the  money,  and 
had  not  paid  it  over  to  the  defendant.     And  the  court 
[  *316  ]    *held  that  this  was  no  libel,  but  a  representation  of  an 
injury  shown  up  in  a  proper  way  for  redress, — yet  nei- 
ther the  officers  nor  the  king  could  give  the  defendant  direct  assist- 
ance in  obtaining  payment  of  the  money  wrongfully  withheld  (&). 

So  also  in  the  case  of  Fairman  v.  Ives  (c),  it  was  held  that  a 
petition  addressed  by  a  creditor  of  an  officer  in  the  army,  to  the 
secretary  at  war,  and  complaining  of  unjust  and  unfair  conduct,  in 

(a)  3  Bac.  Ab.    Libel,   A.  2.  cited  by     5  B.  &  A.  647. 
Best,  J.  5  B.  &  A.  647.  (0  5  B.  &  A.  642. 

(b)  See  the  observations  of  Bayley,   J. 


for  a  new  trial,  the  court,  although  of  opinion  that  the  comment  was  not  a  just  inference 
from  the  facts  stated  in  the  libel,  held  that  the  question  had  been  correctly  submitted  to 
the  jury.  The  court  in  this  case  holding  that  when  a  comment  raises  an  imputation  of 
motives,  which  may  or  may  not  be  a  just  inference  from  the  preceding  statement,  it  ia 
a  distinct  libel,  and  the  propriety  of  the  comment  must  be  submitted  to  the  jury. 


MALICE  IX  FACT. 

respect  of  a  debt  due  to  the  defendant  from  the  plaintiff,  and  writ- 
ten for  the  purpose  of  procuring  payment  of  the  debt,  through  the 
interference  of  the  secretary,  was  not  libellous,  the  petition  con- 
taining qo  more  than  a  fair  and  honest  statement  of  facts,  in  the  ap- 
prehension of  the  defendant. 

Id  the  case  of  an  ordinary  action  for  Blander  of  title,  where  the 
defendant  claims  no  title  for  himself,  but  either  denies  the  plaintiff's 
title,  directly  or  impliedly,  by  asserting  a  title  in  another, — and 
where  for  anything  thai   appears  tins  is  the  mere  wanton  act  of  a 
stranger,  there  being  nothing  to  explain  his  motive  or  conduct,  it 
-  that  the  ordinary  principle  would  prevail,  and  malice  in  law- 
would  result  from  the  rery  act  of  the  defendant,  in  doing  that  which 
was  like  to  occasion  damage,  in  the  absence  of  any  circumst 
which   would    furnish  any   Legal  justification  or  excuse; 
'and  therefore,  the  privilege  which  belongs  to  one  who  as-  [  M17 
sorts  his  own  claim,  docs  not  protect  him  in  falsely  as- 
sertinga  title  in  a  mere  Btranger.      The  defendant  had  said,  ••  1 
know  one  who  had  two  leases  of  his  (the  plaintiff's)  land, who  will 
not  part  with  them  at  any  reasonable  rate."     And  it  was  held,  that 
he  could  not  justify,  by   showing  that  he  meant  to  allege  a  title  by 
two  leases  in  himself  ((/).     .^o  it  has  been  held,  that  if  the  defend- 
ant say  that  J.  S.  has  a  better  title  to  the  land  than  the   tenant  in 
possession,  but  make  no  claim  himself,  an  action  lies  (e). 

Where  the  defendant  in  an  action  for  slander  of  title,  was  not  a 
mere  wrongful  intruder,  bul  was  connected  in  interest,  though  re- 
motely, with  the  transaction,  the  question  is,  whether  he  acted  bona 
fide  or  with  a  malicious  intention  to  injure  the  owner, — and  this  is 
properly  a  question  of  fact  for  the  jury,  under  all  the  circumstances. 

In  the  case  of  Smith  v.   Spooner  ( /  >,  the  action  was  broaght  for 
preventing  the  sale  of  Lease-hold  property,  by  the  assignee  of  the 
.  against  the  owner  of  the  property,  who  had  declared  at  the 
time  of  putting  np  the  property  "for  sale,  that  the  plain- 
tiff could  make  no  title.     It  appeared,  that  the  defend-     [  '818  J 

ant  was   present   when    the  lot    \va»    put   up.   and    that    he 

then  told  the  auctioneer  that  it  was  of  no  use  to  -ell  it,  a-  the  house 

was  his  own  ;  he  was  the  landlord,  ami  that  no  title  could  he  made 
to  it.  On  this,  some  persons  wh  >  had  intended  to  hid  retired,  and 
the  defendant  offered  to  purchase  the  lease,  having  also  made  a  pre- 


('/)   Pcnnymanx.  Rabanks,    Cro.  Eli*.         (/)   Jenk.  247. 
427.  ViD.  Ab.  651.  pi.  11.  (/)  8  Taunt  246. 

Vol.  I.  26 


318  CIVIL  REMEDY— OCCASION. 

vious  offer  of  the  same  kind.     Previous  to  the  trial,  the  defendant 
had  obtained  possession  of  the  premises  by  an  ejectment,  and  the 
plaintiff's  attorney  had  tendered  him  five  quarters'  rent,  and  the 
costs  of  the  ejectment,  if  he  would  deliver  back  the  possession. 
The  jury  found  a  verdict  for  the  plaintiff;  but  the  court  afterwards 
directed  a  nonsuit  to  be  entered,  on  the  ground  that  there  was  no 
evidence  of  express  malice.     But  in  a  subsequent  case  (g")  where 
the  owner  of  a  house  had  prevented  the  plaintiff,  who  held  under  a 
lease  for  years,  from  disposing  of  the  remainder  of  his  term,  by  false- 
ly asserting  that  he  had  no  title ;  the  court,  after  a  verdict  for  the 
plaintiff,  refused  a  rule  to  show  cause  why  there  should  not  be  a 
new  trial.     Lord  Ellenborough,  C.  J.  observing,  that  "  The  cir- 
cumstances of  *the  defendant's  title    and  interest,  may 
[  *319  ]     rebut  the  implication  of  malice  ;  but  here  it  was  left  to 
the  jury,  to  say,  whether  there  was  malice  or  not." 
Where  the  alleged  slander  of  title  was  conveyed  in  a  letter,  to  a 
person  about  to  purchase  the  estate  from  the  plaintiff,  imputing  in- 
sanity to  Y.  from  whom  the  plaintiff  purchased  it,  and  stating  that 
the  title  would  therefore  be  disputed  ;  in  consequence  of  which,  the 
person  refused  to  complete  the  purchase  ;  it  appeared,  that  the  de- 
fendant had  married  the  sister  of  Y.  who  was  heir  apparent  to  her 
brother.     And  the  court  held,  that  under  the  circumstances,  the  de- 
fendant ought  to  have  the  free  liberty  of  stating  objections  to  the 
title,  to  the  proposed  purchaser,  as  in  the  case  of  Gerard  v.  Dicken- 
son and  others,  which  was  not  stronger  than  the  present,  though 
such  a  liberty  was  not  allowed  to  a  mere  stranger,  according  to  the 
rule  in  Jenkins's  Centuries,  immiscet  rei  se  alienee  (/*),  but  that  it 
was  impossible  to  treat  the  defendant  as  a  stranger  ;  for  though  he 
was  indeed  a  stranger  as  to  any  vested  interest,  he  had  an  interest^ 
in  probable  expectation,  so  as  to  induce  him  to  bestir  himself  and 
look  about,  lest  an  improper  conveyance  should  be  made  injurious  to 
his  right.     That  the  question  distinctly  and  substantively 
[  4320  ]     was  whether  *the  defendant,  in  making  the  communica- 
tion which  he  had  made,  had    acted  bona  fide,  believ- 
ing it  to  be  true  (t). 

(g)  Smith  v.  Spooner,  K.  B.  Mich.  1811.  The  learned  judge  who  tried  the  cause  had 

Quaere  whether   the   parties  were  not  the  stated  to  the  jury,  that  if  the  evidence  sat- 

same  as  in  the  case  of   Smith  v.  Spooner,  isfied   them  as  men  of  good  sense  and  un- 

3  Taunt.  246,  in  which  a  nonsuit  was   en-  derstanding,  that  Mr.  Y.  was  insane,  or  if 

tered  in  the  C.  P.  Mich.  1810.  the  defendant  entertained  a  lersuasion  that 

(ft)  247.  P.  C.  36.  he  was  insane,  on  such   grounds   as  would 

(i)  Pitt  v.  Donovan,,  1   M.    &  S.   639.  have  persuaded  a  man  of  sound  sense  and 


MALICE  IN'  FACT.  320 

An  attorney  to  a  creditor  (£),  who  had  previously  committed  an 
act  of  bankruptcy,  Btoppod  the  sale  of  an  estate  previously  mortgaged 
and  assigned  to  the  plaintiff,  by  declaring  the  creditor's  bankruptcy, 
and  thai  a  docket  had  been  made  out  for  a  commission  :  it  i  . 
out  that  an  act  of  bankruptcy  had  Keen  committed,  but  that  do  com- 
mission  had  been  sued  out.  Onaction  brought,  it  was  held,  that  in 
order  to  support  it.  there  should  i«'  proof  of  malice,  either  express 

or  implied  ;   that  if  tin-  defendant  acted  bona  Jul,  .  and  told  tin-  truth 

he  did  no  more  than  his  duty:  and  though  he  went  beyond  what 
was  Btrictly  true,  Mill,  if  there  was  no  material  variance,  and  no  dif- 
ference  made  with  respect  to  the  plaintiff's  title,  the  action  wa 

maintainable. 

In  general,  where  a  communication  is  made  in  'conli-     [  '-Vl\    ] 
dence,  either  by  or  to  a  person  interested  in  the  communi- 
cation, supposing  it  to  be  true,  or  by  way  of  admonition  or  advice 
it  seems  to  be  a  general  rule,  that  malice  is  essential  to  the  main- 
tenance of  an  action  (/)  [1]. 

So  far  has  this  principle  been  carried,  that  it  has  even  been  held 
that  the  publishing  an  advertisement  in  a  newspaper,  involvings 
suspicion  that  the  plaintiff  bad  been  guilty  of  bigamy,  yet  being  pub- 
lished bond  fide,  at  the  instance  of  one  who  was  interested  in  the 
discovery,  was  not  libellous  (in). 

knowledge  of  business,  then  the  defendant  10th  of  August,  1700,  they  will  give  notice 

would  be  entitled  to  the  verdict.     The  jury     to  Jones    (the   defendant),    No.    11 

found   for   the    plaintiff;    but  the    court  Duke-Street,   St.  James's  and    the] 

granted   a  new  trial,  on    the   ground   that  receive  the  reward." 

the  question  was  not  correctly  left  to  the  Lord   EUenboroogh,  in   summing  up  to 

jury.  the  jury,  -                  I  although  that  which 

(/>•)  Hargreave  v.  LeBreton,  Burr.  2422.  ifl  spoken  or  written  maybe  injuri 

(/)  Vide  supra,  217,  218.  *ne  character  of  1 1»» ■  party, 

(m)  Delany   v.  Jones,    I    Bap.  C.  101.  bona  fide,  as  with  a  view  of  invest 

The  alleged  libel  was  as  follows  :—  >  kot,  in  which  the  party  mak 

"TEN  GUINEAS  REWARD.  terested,  it  is  not  libellous,     [f,  then 

••  Whereas,  by  a  letter  lately   received  this  investigation  was  set  on  foot,  and  this 

from  the  West  Indies,  an  event  is  stated  advertisement  published  by  the  plaintiff's 

to  be  announced  by  a  newspaper  that  can  wife,  either  from  anxiety  to  know   whether 

only  be  investigated  by  these  means:—  Bhe  was  legally  the  wife  of  the  plaintiff  or 

This  is  to  request,  that  if  any  printer  or  whether  he  had  another  wife  living  when 

other  person  can  ascertain  that  James  De-  he  married  her,  though  that  is 

huy,  Esq.  (the  plaintiff),  some  years  since  the  medium  of  imputing  bigamy  to  the 

residing  at  Cork,   late   lieutenant   in    the  plaintiff,    it    i-<  just                   ll    in  such  a 

North  Lincoln  Militia,  was  married  pre-  case  it                     for  the   defendant  who 

vious  to  nine  o'clock  in  the  morning  of  the  published   the   libel,                 that  he  pub- 


[1]  See  Bradley  v.  Heath,  12  Pick.  103. 


321  CIVIL  REMEDY— OCCASION. 

r  *go2  ]  *In  an  action  (n)  for  a  libel  on  the  plaintiff,  in  his 
profession  as  a  solicitor,  the  libel,  as  set  out  in  the  dec- 
laration, was  contained  in  a  letter  written  by  the  defendant  to 
Messrs.  Wright  and  Co.  bankers  at  Nottingham,  and  charged  the 
plaintiff  with  improper  conduct  in  the  management  of  their  con- 
cerns. It  appeared,  however,  upon  the  trial,  that  the  letter  was 
intended  as  a  confidential  communication  to  those  gentlemen,  and 
that  the  defendant  himself  was  interested  in  the  affairs  which  he 
supposed  to  be  mismanaged  by  the  plaintiff.  After  the  cause  had 
been  opened  by  the  plaintiff's  counsel, 

Lord  Ellenborough,  C.  J.  said,  if  the  letter  had  been  written  by 
the  defendant  confidentially,  and  under  an  impression 
[  *323  ]     that  its  statements  were  *iv ell  founded,  he  was  clearly  of 
opinion  that  no  action  could  be  maintained.     It  was  im- 
possible to  say  that  the  defendant  had  maliciously  published  a  libel 
to  aggrieve  the  plaintiff,  if  he  was  acting  bona,  fide  with  a  view 
to  the  interests  of  himself  and  the  persons  whom  he  addressed  ; 
and  if  a  communication  of  this  sort,  which  was  not  meant  to  go  be- 
yond those  immediately  interested  in  it,  were  the  subject  of  an  ac- 
tion for  damages,  it  would  be  impossible  for  the  affairs  of  mankind 
to  be  conducted.     His  Lordship  referred  to  the  case   Cleaver  v. 
Sarraude,  tried  on  the  northern  circuit  while  he  was  at  the  bar  ; 
where,  in  an  action  like  the  present,  it  appeared  that  the  letter  had 
been  written  confidentially  to  the  Bishop  of  Durham,  who  employed 
the  plaintiff,  as  steward  to  his  estates,  to  inform  him  of  certain  sup- 
posed malpractices  on  the  part  of  the  plaintiff  ;    upon  which  the 
judge,  who  presided,  declared  himself  of  opinion  that  the  action  was 
not  maintainable,  as  the  defendant  had  been  acting  bona  fide,  and 
the  nonsuit  which  he  directed,  had  been  acquiesced  in  from  a  con- 
viction entertained  by  the  plaintiff's  counsel  of  its  being  founded  in 

law. 

The  Attorney-general,  for  the  defendant,  said,  that  his  client, 
at  the  time  of  writing  the  letter,  was  certainly  impressed  with 
a   belief  of  the  truth  of   the  charges  it  contained,  but  had  since 

lishedit  under  such  authority," and  with  fact  respecting  her  husband,  in  which  sbe 
such  a  view.  The  jury  are,  therefore,  first  was  materially  interested.  If  it  was  so 
to  say,  whether  the  advertisement  imputes  the  publication  is  not  a  libel,  and  the  de- 
ft charge  of  bigamy  to  the  plaintiff,  and  fendant  is  entitled  to  a  verdict."  The  jury 
if  they  think  it  does,  then  to  inquire  found  a  verdict  for  the  defendant, 
whether  the  libel  was  published  with  a  ('0  M'Dougall  v.  Glairidge,  1  Camp  • 
view,  by  the  wife,  of  fairly  finding  out  a  C.  267. 


MALICE   IN   FACT. 

seen  *reason  to  believe  they  were  groundless;  lie  there-  *824  ) 
fore  consented  to  withdraw  a  juror. 

So,  where  the  person  to  whom  the  communication  is  made  ifl  in- 
terested, as  iu  the  case  of  Cleaver  v.  Saraude,  above  quoted,  qo  ac- 
tion is  maintainable  without  proof  of  express  malice. 

In  the  case  of  Duntnan  v.  Bigg  <  o  >.  the  plaintiff  was  a  dealer  in 
beer,  buying  it  of  a  brewer,  and  selling  it  to  publicans.     Wishing 

to  open  an  account  with  the  defendant, a  brewer, one  Leigh  l ame 

his  surety  for  the  price  of  Buch  quantities  of  beer  as  Bhould,  from 
time  to  time,  be  supplied  to  him,  the  defendant  promising  to  inform 
Leigh  of  any  default  in  his  payments  made  by  the  plaintiff. 

After  the  parties  had  dealt  together  for  some  time,  the  defendant 
went  to  Leigh,  and  spoke  to  him  in  very  opprobrious  terms  of  the 
plaintiff,  saying,  that  he  wished  to  cheat  him,  that  he  had  senl  back 
as  unmerchantable,  beer  which  he  himself  had  adulterated  ;  that  he 
was  a  rogue  and  a  rascal,  &c.  At  this  period  there  was  a  sum  of 
money  due  from  the  plaintiff  to  the  defendant  in  respect  of  the 
beer,  for  which  Leigh  had  given  a  guarantee.  Lord  Ellenborough, 
C.  J.  said,  "  I  am  inclined  to  think  that  this  was  a  privileged  com- 
munication. Had  the  defendant  gone  to  any  *other  man, 
and  uttered  these  words  of  the  plaintiff,  they  certainly  [  *325  ] 
would  have  been  actionable;  but  Leigh,  to  whom  they 
were  addressed,  was  guarantee  for  the  plaintiff,  and  the  defendant 
had  promised  to  acquaint  him  when  any  arrears  were  due.  Be 
therefore  had  a  right  to  state  to  Leigh  what  he  really  thought  of  the 
plaintiff's  conduct  in  their  mutual  dealings  ;  and  even  if  the  repre- 
sentations which  he  made  were  intemperate  and  unfounded,  still,  if 
he  really  believed  them  at  thc-tinm,  he  cannot  bo  said  to  have  acted 
maliciously,  and  with  an  intent  to  defame  the  plaintiff.  To  be  sure. 
he  could  not  lawfully,  under  color  and  pretence  of  a  confidential 
communication,  destroy  the  plaintiff's  character,  and  injur."  his 
it,  but  it  must  have  the  most  dangerous  effect  if  the  communications 
of  business  are  to  be  beset  with  actions  <>{'  slander.  In  this 
the  defendant  seems  to  have  been  betrayed  by  passion  into  Borne  un- 
warrantable expressions;  1  will  therefore  not  nonsuit  the  plaintiff, 
and  it  will  be  for  the  jury  to  Bay,  whether  these  expressions  were 
used  with  a  malicious  intention  of  defaming  the  plaintiff,  or  with 

(o)   Sittings  in  London  after  T.  T.  Is  (i.  :'..   (amp.  K.  9St. 
20* 


325  CIVIL  REMEDY— OCCASION. 

faith  to  communicate  facts  to  the  surety  which  he  was  interested  to 

know  (p)  ]1]. 
[  *32G  ]        *It  must,  however,  be    remarked,  that  in    all  these 

cases,  where  the  occasion  is  sufficient  to  raise  the  question 
of  actual  malice,  the  doctrine  must  be  understood  with  this  limita- 
tion, viz.  that  the  times  and  mode  of  the  publication  are  suited  to 
the  occasion.  For  it  seems  to  be  clear,  that  whether  the  occasion 
and  circumstances  supply  an  absolute  or  merely  a  qualified  justifica- 
tion, dependent  on  the  question  of  actual  malice,  they  do  not  extend 

to  justify  any  publication  which  is  not  warranted  by  the 
[  *327  ]    occasion  and  circumstances.     *In  the  instance  of  a  brief 

to  counsel,  for  instance,  the  publication  as  between  the 

(p)  The   parties   agreed   to  withdraw  a  In    the   case  of  Wilson  v.   Stephenson,   2 

juror  —For   further   illustrations   of    this  Price  282,  where  the   defendant  had  stated 

division   of  the  subject,   see   R.    v.  Enes,  that   the  plaintiff  had   murdered  his,  the 

Andr.  229,  Lord  Mordington's   case,  R.  v.  plaintiff's  brother,  the  plaintiff  having,  in 

Jenneaur,    3.    Bac.    Abr.   452,  and   R.  v.  fact,    been   the   innocent  occasion   of    his 

Bailey,  Andr.  22'J.     So   it   was   held   that  brother's  death;  and  the  defence  was,  that 

the   owner  of  a    public   house  could   not  the   words   had  been  spoken  in  the  way  of 

maintain    an  action  against  a  neighboring  admonition,  and  the  jury  found  that  the 

publican,  for   giving   a  bad   character  of  words  were  not  spoken  maliciously;  which 

such  house  to  a  person  who,  being  in  treaty  was   recorded   as  a  verdict  for  the  defend- 

for  purchasing  it,  applied  to  the  defendant  ant,  the   court  refused  to  disturb  the  ver- 

for   information,   provided    (as   is  stated)  diet.     See  further  as  to  words   spoken  by 

there   is   some    evidence,  though  slight,  of  way  of  admonition  or   advice.     2  Brownl. 

the   truth   of    the   assertion.     Humber   v.  151,152.     2   Burn's   Ecc.     Law   179.     3 

Ainge.     Abbott,  L.  C.    J.    AVcst.    13   Feb.  Bac.  Ab.  412. 
1819.     Manning's  Index,  tit.  Libel,  pi.  13. 


[I]  'To  the  illustrations  given  of  this  division  of  the  subject,  it  is  supposed  that  the 
case  of  Prosser  and  another  v.  Bromage,  4  Barn.  &  Cres.  217,  referred  to  by  the  author 
in  page  220  svpra,  might  well  have  been  added  here  as  it  settles  a  most  important  prin- 
ciple bearing  upon  the  every  day  transactions  of  life.  The  plaintiffs  were  bankers  and 
the  charge  was  that  in  answer  to  a  question  put  by  one  Watkins  to  the  defendant, 
whether  he  had  said  that  the  plaintiff's  bunk  had  slopped?  he  had  answered  it  was  true; 
he  had  been  told  so;  that  it  was  so  reported  at  C.  and  that  no  one  would  take  their  bills, 
and  that  he  had  come  to  town  in  consequence  thereof.  It  was  proved  that  C.  D.had  told 
the  defendant  that  there  was  a  run  on  the  plaintiffs'  bank  at  M.  The  defendant  had  a 
verdict,  and  a  new  trial  was  granted  on  the  ground  of  the  misdirection  of  the  jury,  but 
Bayley,  J.  who  delivered  the  judgment  of  the  court  observed,  "  Had  it  been  noticed 
to  the  jury  how  the  defendant  came  to  speak  the  words,  and  had  it  been  left  to  them  as 
a  previous  question,  whether  the  defendant  understood  Watkins  as  asking  for  informa- 
tion for  his  own  guidance,  and  that  the  defendant  spoke  what  he  did  to  Watkins,  merely 
by  way  of  honest  advice  to  regulate  his  conduct,  the  question  of  malice  in  fact  would 
have  been  proper  as  a  second  question  to  the  jury,  if  their  minds  were  in  favor  of  the 
defendant  upon  the  first."  See  also  Pasley  v.  Freeman,  3  T.  R.  51,  and  Van  Spike  p 
Cleyson,  Cro.  Eliz.  541. 


MALICK   IN    FACT.  327 

attorney  and  counsel  may  not  be  libellous,  and  yet,  were  it  to  be 
printed  and  published,  there  mighl  be  a  libel  in  every  Line.  Where 
the  defendant  who  had  acted  as  solicitor  to  a  commissi  inst 

Brown,  upon  a  petition  to  the  chancellor  to  super:  mis- 

sion, published  an  adress  to  the   creditors  in  a  public  newspa] 
charging  the  bankrupt  with  having  committed  a  gross  fraud  against 
his  creditors,  and  calling  on  the  Latter  to  resist  the  proceedin 
Lord  Ellenborough  held  thatas  the  communication  might  have  I 
made  in  a  manner  Less  injurious,  it  was  to  that  extent  Libellous  (7). 

(q)   Brown   v.   Croome,  'J  Bhew  that  snch  a  |                            ••  only 

297.      Bis  lordship  observed,  that  if  the  effectual  mode  of  oonvenin 

publication   in  qdtestion  had   merely  sug-  The  want  of  proper  caution    bad   rend 

gested    doubts,  without    alleging    the  facts  the  publication                                           pub- 

as  in  the   case  of  Delancy  v.  Jones,  the  lished  to  the  world  at  large  ;  this  ma  le  an 

main    grievance   would   have   been    want-  essential  distinction,    which  applied  to  all 

ing.    If  it  could  be  shewn,  that   an  adver  the  cases;  in   the   inst               a  brief  to 

tiseuient  in    the   Gloucester  paper  was  the  counsel    for   instance,    the    pul  lioation   as 

only  possible  means  of  communicating  no-  between   the  attorney  and   counsel  might 

tice  of  the  cironmstanoes,  it  might  besuf-  not  be  libellous,  and   yet   if  it  were  to  be 

ficient   to  vindicate   the   mode  ;  one    per-  printed  and   published,   there  might  be  a 

son  could  have    no    right  to  take  measures  libel  in  every    line.     Every   unauthorized 

for  his  own  benefit  to  the  injury  of  anoth-  publication,  to   the  detriment  of  another, 

er.     The  argument  which  had  been   used  was,  in  point  of  law,  to  be  considered  as 

was  ingenious,  but  the  defendant   made  no  malicious, 
progress   in  his   defence,   unless  he  could 

So  an  action  will  not  lie  for  slanderous  words,  oral  or  written,  where  one  mem- 
ber of  a  church  imputes  to  another  member  of  the  same  church  the  commission  of  a 
crime,  if  the  words  be  spoken  or  written  in  the  course  of  church  discipline,  and  it  be 
not  proved  that  the  defendant  in  making  the  charge  was  actuate  1  by  express  malice. 
Jarvit  v.  Hatheway,  ■'■  Johns.  It.  1  JO  :  O'Donaghut  v.  Mc'G  oern,  23  W(  d  lell,  26. 

In  conclusion  upon  this  point,  "  the  law"  as  is  well 
a  note  to  Wyatt  \.  dorr,  "  respects  communications  made  in  confi  lence,  di  twithst 
ing  they  may  be  false  and  erroneous  and  prove  injurious  to  the  party.  This  rule  or 
rather  limitation  with  respect  to  the  general  law  of  libel,  applies  equally  to  words  writ- 
ten and  spoken.  It  is  meant  to  protect  the  communications  of  business  and  the  neces- 
sary confidence  of  man  in  man.  But  if  the  communication  be  malicious  as  well  a9 
false,  and  under  the  cloak  of  confidence  be  meant  to  defame,  it  is  no  longer  within  the 
protection  of  the  rule.  The  law  not  only  extends  this  exemption  to  the  confidential 
communications  of  friendship,  but    to  all  suchc 

picion  of  malice.  Weatherstone  v.  Hawkins,  1  T.  EL  ll1'  ;  Dunman  v.  Bigg,  1  Camp. 
R.  209  ;  Rex  v.  Hurt,  1  Wm.  Black.  886  ;  -  Bums'  1  Law,  779.  Under  commu- 
nications of  friendship  arc  included  those  of  man  to  man  in  the  aid  of  1  u-iness,  duty- 
public  or  private  functions,  security  of  property,  or  of  the  morals  or  manners  of  his 
family  :  in  a  word,  every  commuui  ■  ition  the  object  of  which  is  to  assist  one  man  without 
injuring  another,  and  to  discharge  the  offices  of  a  man,  a  citizen  and  christian.  The 
law  of  libel  in  this  respect,  only  repeats  and  confirms  the  law  of  moral  duty  ;  and  in 
any  doubt  on  this  head,  it  may  always  lead  us  to  a  safe  conclusion  in  law,  to  inquir* 
simply  what  was  our  duty  as  to  the  point  in  dispute,  in  morality."  See  also  note  [1]' 
page  246,  supra. 


CHAPTER   XIV 


Repetition  of  Slander  invented  by  another. 

[  *329  ]  *The  doctrine  of  justification,  on  the  ground  that  the 
defendant  has  done  no  more  than  repeat  the  scandal  which 
he  has  heard  from  another,  though  of  ancient  date,  rests  on  princi- 
ples so  dubious  and  has  been  so  limited  in  its  modern  application, 
that  it  seems  to  be  doubtful  whether  in  any  case  such  a  justification 
would  be  permitted  to  prevail  as  an  absolute  and  peremptory  defence 
without  reference  to  other  circumstances,  and  the  actual  intention 
of  the  publisher  [1]. 

And  for  this  reason  it  has  been  deemed  to  be  more  proper  to  rank 
this  species  of  defence  with  those  which  are  of  a  qualified  nature, 
and  which  depend,  for  their  consummation,  on  the  absence  of  ex- 
press malice,  than  to  class  it  with  those  where  the  very  occasion  and 
circumstances  furnish  an  absolute  and  peremptory  bar,  independently 
of  the  question  of  intention. 

The  doctrine  of  justification  by  hearsay  was  expressly 
[  *330  ]  recognized  in  Lord  Northampton's  *case  (a),  which  was 
upon  an  information  in  the  Star  Chamber,  for  scandalum 
magnatum.  The  resolution  contained  in  that  case,  has  a  plain  ref- 
erence to  the  rule  contained  in  the  statute  1  Westminster,  which 
enacts,  that  the  propagator  of  slander,  concerning  the  grandees  of 
the  realm,  shall  be  imprisoned  until  he  give  up  the  author.  The 
resolution  was,  "  if  A.  say  to  B.  '  did  you  not  hear  that  C.  was  guilty 
of  treason '  ?"  This  is  tantamount  to  a  scandalous  publication. 
And,  in  a  private  action  for  slander  of  a  common  person,  if  J.  S. 
publish  that  he  hath  heard  J.  N.  say,  that  J.  G.  was  a  traitor  or 
thief,  in  an  action  on  the  case,  if  the  truth  be  so,  he  may  justify : 

[1]  See  note  1,  page  340,  infra.  (a)   12  Rep. 


MALICE  IN   FACT. 

but  if  J.  S.  publish  that  he  hath  heard  generally,  without  a  certain 
author,  that  J.  <:.  was  a  traitor  or  thief,  there  an  action  stir  le  case 
lieth  against  J.  S.  for  this,  that  he  hath  not  given  to  the  party  grieved 
any  cause  of  action  against  any,  but  against  himself,  who  published 
the  words,  although  that  in  truth  he  might  hear  them,  for  othen 
this  might  tend  to  th  slander  of  an  innocent  person  ;  for,  if 

one  who  hath  Icesam  phantasiam,  or  who  is  a  drunkard,  or  of  no 
estimation,  Bpeak  scandalous  words,  if  it  should  be  lawful  for  a  man 
of  credil  to  repeat  them  generally,  without  mentioning 
the  author,  'that  would  give  greater  color  and  probability  1    ] 

that  they  were  true,  in  respeel  of  the  credil  of  the  re- 
peater, than  if  the  author  himself  should  be  mentioned  (6)." 

In  Crawford  v.  Middleton  {<■),  it  was  held,  that  it  was  necessary 
for  the  plaintiff  to  negative  the  fact  of  the  defendant's  having  heard 
the  words  which  he  pretended  to  repeat  as  spoken  by  another. 
But  in  the  case  of  Woolnoth  v.  Meadows  (//),  where  a  Bimilar  ob- 
jection was  taken,  it  was  said  by  the  court,  that  Lord  Northampton's 
case  was  a  complete  answer  to  it. 

As  the  consideration  of  the  indemnity  consists  in  the  giving  the 
plaintiff  a  certain  cause  of  action  against  the  author,  or  at  least 
against  a  prior  propagator  of  the  slander,  if  the  disclosure  made 
fall  short  of  supplying  a  certain  cause  of  action,  it  will  not  avail  as 
a  justification. 

The  defendant  (e)  speaking  to  the  plaintiff,  who  was  a  tailor, 
said,  "I  heard  you  were  run  away."  The  defendant  pleaded,  that 
before  the  speaking  of  the  words,  lie  had  heard  and  been  told,  by 
one  D.  Morris,  that  the  plaintiff  had  run  away,  for  which  reason  he 
spoke  the  word-. 

*Lord  Kenyon,  0.  J.  in  giving  judgment  forthe  plain-    [   '332   ] 
tiff  on  demurrer,  said.  "  Whether  this  be  considered  on 
the  authorities,  or  on  the  reason  of  the  case,  the  justification  cai 
.be  supported.     The  Earl  of  Northampton'-  case  is  precisely  in  point. 
If  a  person  Bay,  that  such  a  particular  man,  naming  him,  told  him  a 
certain  slander,  and  that  man.  in  fact,  did  tell  him  so,  it  i 
defence  to  an  action  to  be  brought  by  a  pera  in  of  whom  the  Blander 
was   spoken  :  but  if  he   assert    that  slander   generally,  and  "without 
adding  who  told  him,  it  is  actionable.     Then  it  is  said,  it  is  sufficient 
to  repel  such  action,  to  disclose,  by  the  defendant's  plea,  the  person 

(A)  The  court  referred  to  34  and  35  Ed.         (c)   1  Lei 
1,  ami  80  Ass.  pi    10,  in  the  Exchequer.        (</)  6  Bast,  I 

Mich.  IS.  1.     Rot.  4.  (e)   Davis  v.  Lewis,  17  T.  II.  7. 


332  CIVIL  REMEDY— OCCASION. 

who  told  him  that  slander ;  but  that  is  clearly  no  justification  ;  after 
putting  the  plaintiff  to  the  expense  of  bringing  the  action,  he  can 
only  impute  the  slander  to  the  person  who  utters  it,  if  the  latter  do 
not  mention  the  person  from  whom  he  heard  it.  The  justice  of  the 
case  also  falls  in  with  the  decisions  on  the  subject.  It  is  just,  that 
when  a  person  repeats  any  slander  against  another,  he  should,  at 
the  same  time, .  declare  from  whom  he  heard  it,  in  order  that  the 
party  injured  may  sue  the  author  of  the  slander. 

So  (/),  where  the  defendant  said  of  the  plaintiff,  who 
[  *333  ]    had  been  proposed  as  a  volunteer  for  *defence  of  the 

country,  "His  (the  plaintiff's)  character  is  infamous; 
he  would  be  disgraceful  to  any  society.  Whoever  proposed  him 
must  have  intended  it  as  an  insult.  I  will  pursue  him,  and  hunt 
him  from  all  society.  If  his  name  is  enrolled  in  the  Royal  Academy, 
I  will  cause  it  to  be  erased,  and  willnot  leave  a  stone  unturned  to 
publish  his  shame  and  infamy.  Delicacy  forbids  me  from  bringing 
a  direct  charge,  but  it  was  a  male  child  of  nine  years  old  who  com- 
plained to  me."  The  defendant  justified,  averring  that  a  male  child 
of  the  name  of  A.  B^  of  the  age  stated,  did  complain  to  the  de- 
fendant of  an  unnatural  crime  before  that  time  committed  by  the 
plaintiff  upon  such  male  child.  Upon  demurrer,  it  was  observed  by 
the  court,  that  slanderous  words  can  in  no  case  be  justified  upon  the 
report  of  another,  unless  the  name  of  the  original  slanderer  be  given 
at  the  time ;  that  it  is  not  sufficient  to  disclose  the  name  for  the  first 
time  in  the  defendant's  plea ;  that  the  object  of  the  rule  is  to  give  the 
injured  person  a  certain  cause  of  action  against  some  one.  But  that, 
in  the  principal  case,  no  action  could  have  been  maintained  on  those 
words  against  the  boy  ;  whereas,  if  the  defendant  had  named  the 
boy  at  the  time,  and  repeated  truly  what  he  had  said  to  him,  the 

plaintiff  would  have  had  his  action  against  the  boy. 
[  *334  ]        *And    for  the  same  reason,  the  repeater  of  slander 

must  give  the  very  words  used  by  the  author ;  for  the 
plaintiff,  to  maintain  his  action,  must  state  the  very  words  used  by 
the  defendant,  and  prove  them  as  stated ;  so  that  unless  the  defend- 
ant faithfully  repeat  the  original  slander,  the  plaintiff  will  not  be 
put  in  possession  of  a  certain  cause  of  action. 

The  defendant  (g-),  in  a  written  affidavit,  deposed  to  words 
spoken  by  a  third  person  concerning  the  plaintiffs,  who  were  mer- 
chants ;  and,  after  stating  the  words  used  by  the  third  person,  add- 

(/)    Woolnoth  v.  Meadows,  5  East,  463.  (g)  2  East,  425. 


MALICE  IX  FACT.  384 

cd,  "or  words  to  that  purport  and  effect."  The  defendants  justi- 
fied, stating,  that  they  did  hear  the  third  person  publicly  declare  to 
the  effect  following;  and  then  proceeded  to  Btatethe  communication 
deposed  to,  on  which  the  action  had  been  brought.  To  this  justi- 
fication the  plaintiff  demurred  npon  Beveral  ground  art, 
in  giving  judgmenl  for  the  plaintiffs,  observed,  that  "at  all  events, 
in  order  to  justify  the  parties  reviving  the  Blander  by  naming  the 
original  author  of  it,  they  must  bo  disclose  the  matter  as  to  give  the 
plaintiff  a  certain  cause  of  action  againsl  the  party  named.  NTow 
here  they  only  state  that  the  other  uttered  such  words,  or  to  thai 
effect;  and  if  the  defendants,  when  called  as  witnesses  to  support 
the  action  against  the  author,  could  only  prove  that  he 
•uttered  words  to  the  effect  of  those  set  forth,  that  would  [  *335  ] 
not  be  sufficient. 

In  Maitland  and  others  (f)  against  Goldney  and  others,  one 
ground  of  the  plaintiff's  action,  as  stated  in  the  declaration,  was, 
that  the  defendants  had  published  the  slander  of  another,  well  know- 
ing that  other  to  have  retracted  his  opinion  of  the  plaintiffs,  and  to 
have  confessed  his  error.  Upon  demurrer,  it  was  not  argued  for 
the  defendants  that  an  action  docs  not  lie  for  publishing  slander 
originally  uttered  by  another,  after  knowledge  by  the  defendant  that 
it  was  untrue,  but  an  objection  was  taken  to  the  mode  of  pleading. 

In  giving  judgment  on  demurrer,  it  was  observed  by  Lord  Ellen- 
borough,  C.  J.  that  "  In  order  to  maintain  this  species  of  action, It 
is  necessary  that  there  should  be  malice  in  the  defendant,  and  an 
injury  to  the  plaintiff,  and  that  the  words  should  be  untrue.  By 
the  first  count,  the  charge  in  substance  against  the  defendants  is, 
that  they  revived  and  published  an  injurious  report  of  the  plaintiff 
which  had  been  made  by  another  person,  who  was  afterwards  con- 
vinced that  he  had  uttered  the  words  hastily  and  rashly,  and  that 
the  defendants  did  this  with  a  full  knowledge  of  all  those  circum- 
stances. All  the  several  allegations  of  the  previous 
reports,  the  subsequent  'explanation  of  the  plaintiff's  [  *836  ] 
conduct  to  Guy  (A;), his  satisfaction  with  it.  and  the  de- 
fendant's knowledge  of  it.  are  so  interwoven  by  the  pleading  with 
the  publication  of  the  libel,  that  they  cou  d  not  be  severed  from  it ; 
so  that  the  plaintiffs  could  not  Bustain  that  count  by  proof  of  the 
publication  alone,  without  such  explanatory  circumstances.  The 
plaintiffs  could  not  entitle  themselves  to  recover   unless  all  were 

(t)  2  East,  4J5.  CO  The  author  of  the  slander. 


336  CIVIL  REMEDY— OCCASION. 

proved.  The  count  then  contains  a  charge  against  the  defendants, 
that  they  published  the  slander  witha knowledge  that  the  person  who 
had  originally  uttered  it  was  satisfied  that  it  was  untrue.  The  fact, 
therefore,  of  such  previous  uttering,  was  merely  used  by  the  defend- 
ants as  a  pretence  for  publishing  the  same  slander;  that  shews  mal- 
ice in  the  defendants,  and  an  injury  to  the  plaintiffs."  Judgment 
was,  however,,  given  for  the  plaintiffs,  not  on  the  ground  of  legal 
malice  being  attributable  to  the  defendants,  but  because  they  had 
repeated  the  effect  of  the  slander,  and  not  the  very  words. 

In  the  case  of  Gerrard  v.  Dickenson  (I),  it  was  held,  that  slan- 
der spoken  by  the  defendant  against  his  own  knowledge,  made  him 
liable  at  all  events,  and  deprived  him  of  the  benefit  of  his  justifi- 
cation. 
[  *337  ]  In  the  case  of  M'Gregor  v.  Thaivites  (m),  it  *was 
held,  that  where  offensive  but  not  actionable  words, 
spoken  by  one  person,  were  written  and  then  published  by  another, 
it  was  no  defence  to  an  action  against  the  latter  for  a  libel,  that  the 
publication  revealed  the  name  of  the  author,  for  as  the  original 
words  were  not  actionable,  as  spoken,  the  defendant  had  not  afford- 
ed the  plaintiff  any  cause  of  action  against  any  other  person  ;  and, 
therefore,  as  the  words,  when  reduced  to  writing,  were  clearly  libel- 
lous and  actionable,  and  no  action  could  be  maintained  against  any 
one  but  the  defendant,  he  was  necessarily  reponsible. 

And  in  the  case  of  Lewis  v.  Walter  (w),  the  defendant  pleaded 
that  the  alleged  libel  was  originally  published  in  the  Hants  Journal 
by  S.  H.  M.  and  W.  H.  ;  that  the  defendant,  at  the  time  of  his 
publishing  the  alleged  libel,  did  also  publish  that  the  supposed  libel- 
lous matter  was  copied  and  quoted  from  the  said  last  mentioned 
public  paper  (The  Hants  Journal),  and  that  the  said  S.  H.  M. 
and  "W.  H.,  had  made  and  delivered  an  affidavit,  pursuant  to  the 
statute,  making  oath  that  they  were  the  publishers  of  the  last  men- 
tioned paper.  This  plea  was  held  to  be  bad  (on  demurrer  j  on  the 
ground  that  the  defendant  had  not  disclosed  the  names  of  the  pub- 
lishers of  the  original  paper  at  the  time  when  he  published  the  libel. 
*And  it  was  held  that,  admitting  that  such  a  defence 
[  *338  ]  could  be  pleaded  in  bar  at  all,  it  could  only  be  in  a  case 
where  the  defendant  had  originally  given  up  the  author 
by  name,  and  where  the  name  is  sufficient  to  identify  the  party. 
The  court,  however,  intimated  considerable  doubts  whether  Lord 

(I)  4  Coke  18  b.  (m)  3  B.  and  C.  24.  (n)  4  B.  and  A.  605. 


MALICE  IN  FACT.  338 

Northampton's  case  extended  to  justify  any   repetition  of  slander, 
except  on  a  fair  and  reasonable  occasion. 

Although  it  be  true  that  the  principal  anthority  for  the  doctrine 
of  justification  by  hearsay,  is  the  extra-judicial  resolution  in  Lord 
Northampton's  case,  yet  the  statutes  of  scandalum  magnatum  afford 
a  strong  reason  for  supposing  that  this  was  once  the  general  law  of 
the  land.  Those  statutes  have  been  regarded  as  declaratory  of  the 
common  law,  and  it  seems  to  be  clear,  from  their  language,  that  in 
all  cases  within  their  scope,  the  propagator  of  scandalum  m 
turn,  was  to  be  imprisoned  no  longer  than  until  he  should  have  dis- 
covered the  author  of  the  scandal  (o).  Now,  if  such  were  the  law, 
even  where  the  slander  affected  men  of  the  highest  rank  and  dignity 
in  the  realm,  it  is  not  very  easy  to  suppose  that  a  stricter  rule  would 
be  applied  where  the  slander  affected  subjects  of  inferior  degree  and 
consequence. 

If  the  question  be  still  open  to  consideration,  there  can 
be  little  doubt  in  what  way  it  ought  to  be  decided  in  point    [  "339  ] 
of  principle. 

It  is  difficult  to  carry  the  doctrine  of  exculpation  from  hearsay 
further  than  this,  that  one  who  bona  fide  repeats  scandal,  which  he 
has  heard  from  the  mouth  of  another,  for  the  purpose  of  enabling 
an  innocent  party  who  has  been  calumniated,  to  take  measures  for  re- 
dressing the  grievance,  shall  not  be  liable  to  an  action.  It  is  obvi- 
ous, that  if  a  man  malevolently  give  a  wide  circulation  to  slan- 
der, under  the  mere  color  and  pretence  of  rendering  friendly  aid 
and  assistance  to  the  party  calumniated,  he  stands  in  no  situation 
which  entitles  him  to  legal  protection  ;  and  consequently,  a-  the  act 
is  in  its  own  nature  injurious,  there  is  nothing  to  exempt  him  from 
the  ordinary  rule,  which  obliges  the  propagator  of  a  scandalous  re- 
port, attended  with  actual  or  presumptive  damage,  to  make  compen- 
sation (/;). 

Were  such  a  justification  to  lie  an  absolute  and  peremptory  bar 
to  the  action,  it  might  be  in  the  power  of  any  two  ill-disposed  persons 
to  slander  a  third  with  impunity.      If  A.  were  to  impute  felony  or 
any  other  crime  to  M.,  in    the  presence  of  II.,  and  15. 
were  to  impute  the  same  offence  to  \M.  in  the  p  [    "840  J 

of  A.,  and  each  were  then  to  publish  generally  that  he 
had  heard  such  slander  reported  by  the  other,  M.  would  be  without 

(o)  Supru,  176.  (p)  Sec  Mr.   Borthwick's  Observations, 

Law  of  Libel,  p.  291,297. 

Vol.  I.  27 


340  CIVIL  REMEDY— OCCASION. 

remedy  against  either ;  if  he  brought  his  action  against  A.,  then  A. 
would  prove,  that  he  did  in  fact  hear  the  charge  from  B.;  if  he  sued 
B.  a  similar  defence  would  also  succeed  [1] . 

[1]  It  is  undeniable  that  at  the  time  of  the  publication  of  the  second  English  edition 
of  this  work  (i.  e.  in  1830,)  it  was  and  still  is  the  law  of  England,  that  an  action  will 
not  lie  againt  a  party  for  oral  slander,  if  at  the  time  of  speaking  the  words,  he  gives  the 
name  of  the  auilior  of  the  slanderous  charge.  This  is  manifest  from  the  case  of  Davis 
v.  Lewis,  7  T.  R.  27,  and  Mailland  v.  Goldney,  2  East,  426,  and  indeed,  from  the  pur- 
port of  this  whole  chapter,  although  the  learned  author  struggled  hard  to  give  a  differ- 
ent complexion  to  the  subject.  The  rule,  as  it  prevailed  in  England,  was  adopted  in  its 
full  extent  in  South  Carolina,  in  the  case  of  Miller  v.  Kerr,  2  McCord's  R.  285.  In 
Pennsylvania  it  was  at  first  held  that  giving  up  the  author  was  prima  facie  a  good  de- 
fence; but  allowing  the  presumption  of  innocence  to  be  rebutted  by  proof  of  malice, 
Binns  v.  McCorkle,  2  P.  A.  Brown's  R.  79,  and  Hersh  v.  Ringwalt,  3  Yeates,  508. 
This  doctrine  was  subsequently  modified  in  that  state,  by  allowing  the  defendant  in  miti- 
gation of  damages  to  prove  that  what  he  had  uttered,  he  had  been  told  by  another,  al- 
though the  author  of  the  slander  was  not  named  at  the  time  of  the  speaking  of  the  words, 
Kennedy  v.  Gregory,  1  Binney,  85,  and  by  permitting  it  to  be  proved  that  the  defend- 
ant had  not  devised  the  slander,  but  that  it  was  found  among  the  papers  of  his  prede- 
cessor in  a  printing  establishment,  Morris  v.  Dvane,  1  Binney,  90,  n.  In  Connecticut 
it  was  held  when  the  question  first  arose  there,  that  giving  the  name  of  the  author  as 
the  time  of  the  speaking  of  the  words  was  available  in  mitigation  of  damages,  Leister 
v.  Smith,  2  Root,  24:  but  subsequently  it  was  held  that  such  evidence  ought  not  to  be 
received,  even  in  mitigation,  Austin  v.  Banchett,  2  Root,  148;  and  Treat  v.  Browwing 
and  wife,  4  Conn.  408. 

In  1813,  the  case  of  Dole  v.  Lyon,  10  Johns.  R.  447,  came  before  the  supreme  court 
of  the  state  of  New-York  for  adjudication.     It  was  an  action  for  a  libel  published  by 
the  defendant,  in  which  he   gave   the  name  of  the  author,  viz.  one  G.  D.  Young.     The 
plaintiff  recovered  a  verdict,  and  the   defendant    asked   for  a  new  trial,  on  the  ground 
among  others,  that  having  given  the  name  of  the  author,  he  was  not  liable  to  an  action- 
Chief  Justice  Kent  pronounced  the  judgment  of  the  court.     After  adverting  to  the  rule 
laid  down  in   the  Earl  of  Northampton's   case,  12  Co.    132,  and  in  Davis  v.  Lewis, 
1  T.  R.  17,  he  observed  that  in  neither  of  those  cases  was  that  rule  the  point  in  judg- 
ment, and  proceeded,  "  It  mav  well  be  questioned  whether  this  rule,  even  as  to  slander- 
ous words,  ought  not  to  depend  upon   the   quo   animo  with  which  the  words  with  the 
name  of  the  author  are  repeated.     Words  of  slander,  with  the  name  of  the  author,  may 
be   repeated  with  a  malicious  intent,  and  with  mischievous  effect.     The  public  may  be 
ignorant  of  the  worthlessncss  of  the  original  author,  and  may  be  led  to  attach  credit  to  his 
name  and  slander,  when  both  are  mentioned  by  a  person  of  undoubted  reputation.   There 
is  however  a  distinction  between  oral  and  wbittenot  miNTED  slakdek,  which  is  noticed 
in  all  the  books;  and  the  latter  is  deemed  much  more  pernicious,  and  will  not  so  easily 
admit  of  justification.      There  is  no  precedent  (f  such  a  justification  in  an  action  for  a 
libel.     He  concludes  his  opinion  upon  this  part  of  the  case  in  these  words:  "  Individual 
character  must  be  protected,  or  social  happiness  and  domestic  peace  are  destroyed.     It 
is  not  sufficient  that  the  printer,  by  naming  the  author  gives  the  party  grieved  an  ac- 
tion against  him.     This  reason  of  the  rule  is  metioned   in  Lord  Northampton's  case, 
and  repeated  by  Lord  Kenyon.     But  this   remedy  may    afford   no  consolation  and  no 
relief  to  the  injured  party.    The  author  may   be  some  vagrant  individual,  who  may 
easily  elude  process;  and  if  found,  he  may  be  without  property  to  remunerate  in  dam- 
ages.   It  would  be  no  check  on  a  libellous   printer  who  can  spread  the  calumny  with 


MALICE  IN   PACT.  340 

ease  and  rapidity  throughout  the  community.  The  calumny  of  the  author  would  fall 
harmless  to  the  ground,  without  the  aid  of  the  printer.  The  injury  is  inflicted  by  the 
press,  which  like  other  powerful  engines,  is  mighty  fur  mischief  as  well  as  fur  good.  I 
am  satisfied  that  the  proposition  contended  for  on  the  part  of  the  defendant,  is  us  desti- 
tute of  foundation  in  law,  us  it  is  repugnant  to  principles  of  public  policy."  A  new 
trial  was  denied.  This  case  may  be  considered  as  having  settled  the  law  in  New-York, 
that  giving  the  name  of  the  author  is  no  bar  to  any  action  for  the  republication  of  a 
libel  ;  and  in  the  subsequent  cases  of  Mapes  v.  fVeek$,  1  WVn  hi,  659,  and  Inman  v. 
Foster,  8  Id.  602,  it  was  adjudged  in  the  same  State  that  evidence  that  the  defendant 
had  been  told  by  another  whit  he  hid  attend  against  the  plaintiff  was  inadmissible  as 
well  in  mitigation  of  damages  as  in  bar  of  a  recovery.  In  1802,  the  supreme  court  of 
Pennsylvania  in  Runkle  v.  Meyer,  3  Yeates,  518,  advanced  the  doctrine  subsequently 
held  in  Dole  v.  Lyon,  that  giving  the  name  of  the  author  of  a  libel  was  no  justification; 
but  added  that  the  evidence  was  admissible  in  mitigation  of  damages. 

In  1821,  Lord  C.  J.  Abbott  and  Best,  J.  in  the  case  of  Lewis  v.  Walter,  4  Barn, 
and  Aid.  611,  expressed  their  doubt3  whether  the  resolution  contained  in  the  Earl 
of  Northampton's  case,  was  applicable  to  written  slander.  Iloi.novn,  J.  insisted  that 
even  in  respect  to  oral  slander,  a  defendant  under  the  rule  in  the  Earl  of  North- 
ampton's cose  was  not  justifiable,  unless  the  words  were  spoken,  (in  repetition)  on 
a  fair  and  justifiable  occasion:  in  which  opinion  Best,  J.  concurred,  observing  that  it 
was  justifiable  to  repeat  the  slander  only  when  done  for  some/air  and  reasonable  cause; 
thus  assenting  in  1821,  to  the  doctrine  laid  down  by  Chief  Justice  Kent  in  1813.  In 
1829,  however,  the  question  as  to  this  defence  in  case  of  icritten  slander,  was  fully 
settled  in  the  King's  Bench  in  De  Crespiyny  v.  Wellesly,  5  Bingham,  3'J2.  To  a  de- 
claration for  a  libel,  the  defendant  pleaded  that  the  matter  alleged  as  libellous,  was  de- 
livered to  him  in  a  written  statement  by  a  third  person,  and  that  at  the  time  of  the  pub- 
lication, he  gave  the  name  of  such  person.  The  plaintiff  demurred.  Best,  then  Chief 
Justice,  delivered  the  opinion  of  the  court,  that  such  a  justification  cannot  be  pleaded  to 
an  action  for  the  republication  of  a  libel ;  and  at  the  same  time  entered  a  protestando 
in  behalf  of  the  court,  against  being  considered  as  admitting  that  even  in  oral  sland 
party  may  plead  that  what  he  had  related  had  been  told  to  him  by  a  third  person,  and 
that  at  the  time  of  speaking  the  words  he  named  such  third  person. 


CHAPTER  XV. 


Of  the  Process  and  Pleadings. 

[  *341  ]        *Next  are  to  be  considered  the  means  appointed  by 
law  for  obtaining  such  damages  where  the  party  is  enti- 
tled to  them ;  and  the  means  of  defence  where  a  party  sues  who 
is  not  so  entitled. 

The  division  of  these  proceedings  is  naturally  suggested  by  the 
order  in  which  they  occur  in  point  of  time,  and  consist  of  the  pro- 
cess, pleadings,  trial,  judgment,  and  writs  of  error ;  to  which  may 
be  added,  the  .writ  of  prohibition. 

OF   THE   PROCESS. 

The  action  to  recover  damages  for  slander,  whether  oral  or  writ- 
ten, is  an  action  on  the  case  ;  in  which,  since  the  damages  are  un- 
certain, the  party  cannot  be  held  to  bail  without  a  special  order  of 
the  court,  or  of  a  judge,  on  a  full  affidavit  of  the  circumstances  (a) 
and  no  instance  appears  in  the  books  in  which  such  an  order,  in  a 
common  case,  has  been  granted.     Even  in  an  action  of 
[  *342  ]    scandalum  magnatum,  the  court  has  denied  an  appli- 
cation   for  good  bail  ;  in  the  Marquis  of  Dorchester's 
case  (6)  the  defendant  agreed  to  put  in  bail  to  the  amount  of  X50. 
In  the  Earl  of  Macclesfield's  case  (c),  the  plaintiff  desired  that 
the  defendant  might  put  in  special  bail ;  but  the  court  could  not 
orant  it,  and  said  it  was  a  discretionary  thing,  and  not  to  be  de- 
manded of  right  [1]. 

(a)  1  Tidd.  P.  150,  ed.  4.  (6)  2  Mod.  215.  (c)  3  Mod.  41. 


(1)  In  Clason  v.  Gould,  2  Caines  R.  47,  the  defendant  who  had  been  arrested  in  an 
action  for  a  libel  in  which  a  judge's  order  to  hold  to  bail  had  been  obtained,  was  dis- 
charged on  the  ground  that  the  affidavit  to  hold  to  bail  did  not  show  any  special  cause 
to  justify  the  order;  which  the  court  said  must  be  done  to  entitle  the  plaintiff  in  such 
action  to  hold  to  bail.  In  Van  Vechten  v.  Hopkins,  2  Johns.  293,  it  was  held  sufficient 
to  hold  the  defendant  to  bail  that  he  was  a  transient  person,  residing  out  of  the  state, 
and  a  motion  for  his  discharge  was  accordingly  denied. 


DECLARATION— VENUE.  342 

And  it  seems  that  the  court  will,  in  no  case,  allow  special  bail, 
unless  affidavit  be  made  of  the  words  spoken  (d). 

It  is  next  to  be  considered  what  there  is  peculiar  to  the  pleadings 
in  an  action  for  Blander:  Observations  upon  the  declaration  relate 
to  the  venue,  the  parties,  the  averments,  and  the  joinder  of  different 
counts. 

FUST.  TO    THE    \  I.M'K. 

In  general,  the  venue  in  an  action  of  this  nature  may  he  changed 
upon  the  usual  affidavit,  where  that  affidavit  can  be  made  with  pro- 
priety. But  where  (e),  a  libel,  written  or  printed  in  one  county,  is 
circulated  in  others,  the  court  will  not  change  the  venue  to  the  first 
for,  as  every  publication  is  a  fresh  offence,  the  defendant 
*cannot  swear  that  the  cause  of  action  was  confined  to  [  *348  1 
any  one  county  (/). 

But  where  a  libel  is  written  in  one  place,  and  sent  to  another  in 
the  same  county,  the  court  will  change  the  venue  (#•),  if  it  be  laid 
in  a  different  county  [1]. 

So,  where  the  libel  is  written  in  one  county  and  published  in  Ger- 
many, the  defendant  may  change  the  venue,  upon  an  affidavit  that 
the  cause  of  action  arose  in  that  county,  and  not  elsewhere  in  this 
kingdom  (h). 

And  in  the  case  of  Freeman  v.  Nurris  (£),  the  distinction  was 
recognized  between  libels  dispersed  throughout  the  kingdom  and 
those  which  are  published  in  one  county  only. 

So  that,  where  the  libel  is  printed  in  one  county  and  published  in 
a  second,  the  venue,  if  laid  in. the  second,  cannot  be  changed  ;  for 
the  publication  in  the  latter  county,  is  the  act  of  the  defendant,  and 
he  cannot  make  the  usual  affidavit  (j  ). 

(d)  3  Mod.  41.  mark  of  that  place;  the  patting   the  Utter 

(c)  Hoskins  v.  Jiidgwny,  II.  23  G.  3.  K.  into  the  post-office,  at  Stafford,  being  prima 

B.     Pinkney  v.  Collins,  1    T.    R.  071.     1  facie   evidence    that  it    was  written  there. 

Wib.  178,  1  T.  R.  047.  Httckon  v.  Best,  1  B.  &  B. 

(/)    Clissold  v.  Clissold,  1  T.  R.  C47.  1  (g)  Freeman  v.  .Yorris,  3  T.  R.  300. 

Wils.  178.     The  court  refused  to  change  (h)  3  T.  EL.  662.  Mtt    ■';'  •    Markham. 

the  venue  from    London   to  Worcester,  an  (i)  3  T.  R.  300. 

affidavit  being   made   that    the  letter  was  (;  )   Hitchon  v.  Best,  1  1!   .v  B 

written  at  Stafford,  because  it  bore  the  post- 


[1]    In  New  York,  actions  of  slander,  written  and  unwritten,  are  directed  by  statute, 
1  R.  S.  409.  sec.  2,  to  be  tried  in  the  county  where  the  prune   is    laid,  onleu  the  court 
deem  it  necessary  for  the  convenience  of  parties  and  their  witnesses,  or  for  the  purposes 
of  a  fair  anl  impartial  trial,  to  order  the  actions  tried  in  some  other  county. 
27* 


343  CIVIL  REMEDY. 

But  the  court  will  otherwise    change  the  venue    where  special 
ground  is  laid. 
[  *344  ]        *As  if  the  defendant  cannot  have  a  fair  trial  in  the 
original  county  (&). 

But  in  an  action  for  scandalum  magnatum,  it  seems  the  venue 
cannot  be  changed  upon  the  usual  affidavit ;  and  the  reason  assigned 
is,  that  the  scandal  raised  of  a  peer  of  the  realm  reflects  upon  him 
throughout  the  kingdom  (/). 

In  the  case  of  Lord  Shaftesbury  above  alluded  to,  the  venue  was 
changed  on  the  ground  that  the  defendant  could  not  have  a  fair  trial 
in  London,  where  the  venue  is  laid. 

In  the  Marquis  of  Dorchester's  case  (»*),  on  a  motion  to  change 
the  venue,  which  had  been  laid  in  London,  Pemberton,  Serj.  shewed 
cause  against  the  motion. 

1st.  Because  the  king  was  a  party  to  the  suit ;  for  it  is, 

2ndly.  Because  the  plaintiff  was  a  lord  of  parliament,  where  his 
services  would  be  required.  North,  C.  J.  was  of  opinion  that  the 
venue  could  not  be  changed,  as  the  proceding  was  in  the  nature  o 
an  information.  But  Atkins,  J.  inclined  to  think  that  the  venue 
might  be  changed  ;  but  the  court  not  agreeing,  the  defendant  con- 
sented that  the  cause  should  be  tried  in  London,  and  the  venue  was 

not  changed. 
[  *345  ]         *But  it  seems  that  generally,  unless  special  ground 
be  laid  for  changing  it,  the  plaintiff  in  scandalum  magna, 
turn  may  retain  his  venue  (w). 

Formerly,  in  actions  for  slander  as  well  as  in  others,  where  a  local 
justification  was  pleaded,  the  courts  observed  great  nicety  in  requir- 
ing the  venire  to  be.  awarded,  not  only  from  the  county,  but  the 
very  place  which  the  justification,  as  stated  in  the  plea,  arose.  The 
reasons  for  this  were,  indeed,  frequently  stronger  in  these  actions 
than  in  other  instances,  since  where  the  truth  of  a  criminal  charge 
is  pleaded  in  justification,  the  issue  partakes  of  the  nature  of  a 
criminal  process  ;  and  it  is  said,  that  upon  its  being  found  against 
the  plaintiff,  he  is  liable  to  be  tried  by  a  petty  jury  without  further 
inquest. 

In  the  case  of  Ford  V.  Brooke  (o),  which  was  an  action  for  call- 
ing the  plaintiff  a  perjured  person  at  D.  in  Essex  ;  the  defendant 
justified,  averring  that  the  defendant  had  perjured  himself  at  West- 

(fc)  Lord  Shaftbury's  case,  1  Vent.  364.         (n)  Duke  of  Norfolk    v.   Anderton,    2 
(I)  Gil.  C.  P.  90.  Salk.  668.  1  Lev.  56.  307.  1  Vent.  364. 

(m)  2  Mod.  216.  (<>)  Cro.  Eliz.  261. 


DECLARATION  —  \  KM  I". 

minster,  in  the  county  of  Middlesex;  the  plaintiff  replied,  de   in. 
jttria,  &c.  and  the  court  awarded  the  venire  to  be  directed  to  the 
sheriff  of  Middles 

So,  in  an  actioD  for  calling  the  plaintiff  a  thief,  at  Dale,  in  E 
the  defendant  pleaded  that  the  plaintiff  had  committ 
robbery  at  Sale,  in  the  'same  county  :  and  issue  being 
joined  upon  that  fact,  the  court  awarded  the  venire  from 
Sale  (/;).     And  a  misdirection  of  the  venire  was  a  good  ground 
arresting  or  setting  aside  the  judgment,  though  the  court  would,  in 
such  case,  award   a   new  venire.      But    the   law   upon    this   point   LB 
altered  by  the  statutes  10  &  17    C.  2.   c.   8,  and  1  Ann.  c.  li;.  B.  6  ; 
the  former  of  which  enacts  that,  after  verdict,  DO  judgment  shall  be 
arrested  or  reversed,  for  that  there  is  no  right  venue,  so  as  the 
cause  of  action  were  tried  by  a  jury  of  the  proper  county   or  place 
where  the  action  was  laid  :    and    the   latter  directs  that  the  venire 
shall  be  awarded  out  of  the  body  of  the  county  where  such  issue  is 
triable  (//). 

In  Craft  v.  Boite  (•/•),  the  words  were,  "  Look,  there  is  a  thiev- 
ish young  rogue,  he  hath  stolen  .£200  worth  of  plate  out  of  Wad- 
ham  College,"  (meaning  Wadham  College,  in  the  University  of 
Oxford).  The  plaintiff  brought  his  action  in  London  ;  the  defend- 
ant justified  the  words,  because  he  said  that  the  plaintiff  at  Ox- 
ford, in  the  county  of  Oxford,  stole  certain  plate  out  of  Wadham 
College;  the  plaintiff  pleaded  de  injuria,  SfC.  ;  and  the  issue  was 
tried  in  London,  where  the  plaintiff  had  a  verdict  with  £50  dam- 
ages. 

'Saunders,  for  the  plaintiff,  moved  in  arrest  of  judg-     [  •847 
ment,  on  the    ground    of  the    mistrial,  but    the    court 
(against  the  opinion  of  Twisdcn)  conceived  that  the  fault  was  cured 
by  the  statute  which  was  lately  passed  (s).     And  this,  which  ap 
pears  to  have  been  the  first  decision  under  the  act,  has  since  been 
acquiesced  in. 

NEXT,   AS   TO   Tin:   PARTIES. 

First  as  to  the  number  of  plaintiffs.     In  this  species  of  action, 
as  well  as  in  other  cases  of  tort,  two  or  more  may  join  where  their 

(/))  Clerk  v.  James,  Cro.  Eliz.  870.     See         (r)   1  Saund.  211. 
also  Bowyer's  case,  Cro.  Eliz.  (»)  10  &  17  C.  2. 

(g)  SecScrj.  William's  note,  2  Saund.  6. 


347  CIVIL  REMEDY. 

joint  interest  has  been  affected  by  the  act  of  the  defendant  (J). 
So  that,  where  a  libel  reflects  upon  two  partners  in  their  trade, 
they  may  join  in  the  action  (u)  [a  a].  But  unless  a  joint  interest 
be  affected,  several  actions  should  be  brought,  though  the  same 
words  be  spoken  or  libel  published  concerning  two  [1].  Thus, 
where  A.  says  to  B.  and  C,  "  You  have  murdered  D.,"  B  and 

C.  must  bring  several  actions,  not  a  joint  one  (x).  So 
[  *348  ]     it    seems,  *that    two  joint-tenants    or    coparceners  may 

join  in  an  action  of  slander  of  their  title  to  the  es- 
tate :  for  as  it  must  be  shown  in  the  declaration,  and  proved,  that 
the  plaintiffs  received  some  particular  damage,  by  reason  of  the 
slander,  the  damage,  even  as  well  as  their  interest  in  the  estate, 
is  joint  (?/) . 

(t)  Wellcr   v.   Baker,    2  Wils.   423.    2  ners)  in  their  joint  trade,  is  not  supported 

Williams'  Saund.  116.  a.  n.  2.  by  proof  that  they  were  addressed  to  one 

(u)  Maitland  v.  Goldney.  2  East.  425.  of  them  personally.     Solomons  v.  Medex, 

3  Bos.  and  Pull.  150.     Cook  v.   Batchelor,  1  Starkie's  C.  191. 

Shepp.  Ac.  53.  Foster  v.  Lawson,  3  Bingh.         (x)   Smith  v.  Croker,  Cro.  Car.  512.  28. 

452.  H.   8.   fol.   19.      Dyer,    Shepp.    Ac.   53. 

[a  «]  An    allegation    that    words    were  Deacon's  case, 
spoken  concerning  three  plaintiffs,  (part-         (y)  2  Will.  Saund.  117.  a. 

[1]  In  Sumner  v.  Buel,  12  Johns.  R.  475,  it  was  held  by  a  majority  of  the  judges  of 
the  Supreme  Court  of  New-York,  that  for  the  publication  of  a  libel  against  the  officers 
of  three  companies  of  a  regiment  of  militia  called  into  public  service,  an  action  would 
not  lie  at  the  suit  of  one  of  those  officers,  unless  special  damage  was  alleged  and  proved. 
Chief  Justice  Thompson  held  that  when  the  libel  has  no  particular  and  personal  appli- 
cation and  is  so  general  that  no  individual  damage  can  be  presumed,  and  the  class  or 
individuals  so  numerous  to  whom  it  would  apply,  that  great  vexation  and  oppression 
might  grow  out  of  a  multiplicity  of  suits,  no  private  suit  can  be  sustained;  but  the 
offender  must  be  proceeded  against  by  indictment.  Spencer  and  Yates,  justices,  con- 
curred. Van  Ness,  J.  dissented  and  delivered  an  opinion,  in  which  Platt,  J.  concurred- 
The  doctrine  of  Sumner  v.  Buel,  was  called  in  question  in  Ryckman  v.  Delavan,  17 
AVendell  52,  which  was  an  action  for  a  libel  affecting  the  business  of  the  plaintiff  as  a 
brewer  of  beer.  The  libel  charged  that  certain  malting  establishments  on  the  hill  in 
Jllbany,  were  supplied  with  water  from  stagnant  pools,  gutters  and  ditches  for  the  pur- 
pose of  carrying  on  the  business  of  malting,  &c.  The  plaintiff  averred  that  he  had  a 
malting  establishment  on  the  hill,  &c.  and  that  to  injure  him  the  publication  was  made. 
The  defendant  demurred,  and  the.  Supreme  Court  upon  the  strength  of  the  decision  of 
Sumner  v.  Buel,  held  that  the  action  did  not  lie  :  which  judgment  was  reversed  by  the 
Court  for  the  Correction  of  errors.  See  23  Wendell  186;  the  latter  court  holding  that 
an  action  for  a  libel  may  be  sustained  by  an  individual  for  an  injury  to  his  business  re- 
sulting from  a  libellous  publication,  although  it  affect  the  business  of  others  engaged  in 
the  same  calling,  unless  it  be  manifest  upon  the  face  of  the  publication  that  the  charges 
are  against  a  class  of  society,  a  profession,  an  order,  or  body  of  men  ;  and  cannot,  by 
possibility,  import  a  personal  application  tending  to  private  injury. 


DECLARATION— PARTIES.       ■  348 

So,  for  the  words  A.,  or  B.  murdered  D.,  either  A.  or  B.  may 
bring  a  separate  action  (c),  Imt  they  cannot  maintain  a  joint 
one  (a).  Where  (b")  joint  actionable  words  are  Bpoken  of  a  hus- 
band and  wife,  the  tort  IS  several,  and  the  husband  alone  may  bring 
the  action  ;  hut  the  wile  may,  in  Buch  ca-e,  be  joined,  provided  the 
injury  be  laid  as  done  to  herself  [1]. 

The  case  of  words  spoken  of  the  wife  admits  of  three  varieties; 

1st.  "Where  the  words  are  not  actionable,  but  are  attended  with 
special  damage. 

2dly.   Actionable  without  special  damage. 

3dly.  Actionable  with  special  dam 

In  the  first  case,  the  damage  resulting  to  the  husband  is  the  solo 
ground  of  action,  and  the  wife  must  not  be  joined.  As,  where  the 
action  is  brought  for  calling  the  wife  a  bawd,  per  quod  the  husband 
*lost  his  customers  (c).  And  to  join  the  wife  in  Buch 
case  would  be  bad  on  demurrer,  in  arrest  of  judgment,  [  *349  ] 
or  in  error  (d) . 

But  secondly,  where  the  words  arc  actionable,  and  no  special 
damage  is  laid,  the  wife  must  be  joined,  and  the  declaration  must 
conclude  ad  damnum  ipsorum,  for  there  the  action  survives  :  and 
she  must  be  joined  (c)  in  an  action  for  any  slander  published  of  her 
before  her  marriage  [2]. 

But  thirdly,  where  the  words  spoken  of  the  wife  arc  actionable, 
and  special  damage  has  accrued  in  consequence  to  the  husband. 

(z)  10  Mod.  198.  (<0  8  T.  R.  627.  681.     Com.   Dig.  Bar. 

(«)  1  Roll.  Abr.  81.  and  Fem.     1  Sid.   387.     LI     Bay.    1-08. 

(b)  Smith  v.  Croker,  Cro.  Car.  512.  Roll.  Ab.  317. 

(c)  1  Lew.  140.     B   N.  P.  7. 

(d)  Grace  v.  Hart,  Tr.  85  G.  2.     B.  N. 
P.  7. 


[1]  See  Ebersoll  v.  King  and  wife,  3  Binney  565,  where  it  is  held  the  shin  ler  of  hus- 
band and  wife,  cannot  be  joined  in  the  same  action. 

[2]  An  action  for  words  not  actionable  per  se,  spoken  of  the  wife  alleging  special 
damage,  must  be  brought  in  the  name  of  the  husband  alone  ;  but  for 
in  themselves,  spoken  of  her,  the  action  must  be  in  the  names  of  the  husband  an  I  wife, 
although  they  live  apart  under  articles  of  separation,  Beaoh  and  wife  v.  Uufney  and 
wife,  2  Hill  309.  Where,  however,  an  action  was  brought  by  the  wife  tiring  apart 
from  her  husband  under  articles  of  separation,  in  the  7iamcs  of  her  huebond  an  I  herself, 
for  slanderous  words  spoken  of  her,  it  was  held  tint  a  release  of  the  cause 
ecuted  by  the  husband,  wis  a  good  bar  to  the  suit,  notwithstanding  tint  in  the  articles, 
the  husband  had  covenanted  that  suits  might  be  brought  in  their  join!  n  imet,  for  any 
injury  to  the  person,  or  character,  &0.  of  the  wife.  Beach  and  wife  v.  Beach  and  wife. 
2  Hill  2G0. 


349  CIVIL  REMEDY. 

perplexity  has  arisen  on  the  question  whether  the  wife  should  be 
joined  or  omitted.     The  difficulty,  in  this  case,  proceeds  from  the 
circumstance  of  two  distinct  causes  of  action  being  involved  in  one 
and  the  same  transaction, — the  actionable  words  spoken  of  the  wife, 
and  the  special  damage  resulting  to  the  husband.     For  the  former, 
the  husband  is  not  entitled  to  damages  without  making  his  wife  a 
party,  and  the  cause  of  action  survives  to  her.     In  the  latter  case, 
the  loss  is  several,  and  peculiar  to  the  husband,  and  ought  not,  there- 
fore, to  be  stated  as  the  loss  of  both.     Accordingly,  where  the  hus- 
band has  brought  the  action  alone,  it  has  been  contended 
[  *350  ]  *that  he  ought  to  have  joined  his  wife  in  respect  of  the 
actionable  words  spoken  of  her,  that  at  all  events  the 
action  would  survive  to  her,  and  therefore  that  the  defendants  would 
twice  make  compensation  for  the  same  injury.     And  in  similar  cases, 
when  the  wife  has  been  joined,  it  has  been  argued  that  the  joint 
action  was  improper  since  the  special  damage  accrued. 

From  a  review  of  the  decisions  upon  this  point,  it  appears,  that 
the  wife  is  not  barred  by  the  husband's  action,  though  the  special 
damage  result  from  actionable  words  spoken  of  the  wife,  which  re- 
moves the  objection  to  a  separate  action,  in  which  he  alone  is  enti- 
tled to  recover  damages.  In  Guy  v.  Livesay  (/),  the  husband 
alone  recovered  in  an  action  of  trespass  for  a  personal  injury  to  him- 
self, and  also  for  beating  his  wife,  by  means  of  which  he  lost  her 
society  for  three  days.  And  on  motion  in  arrest  of  judgment,  the 
court  held,  that  the  action  was  well  brought ;  for  the  action  was  not 
brought  in  respect  of  the  harm  done  to  the  feme,  but  the  particular 
loss  of  the  husband,  for  that  he  lost  the  company  of  his  wife,  which 
was  only  a  damage  and  loss  to  himself,  for  which  he  should  have  the 
action,  as  the  master  should   have  for  the  loss  of  his  servant's 

service. 
[  *351  ]  *h\  Young-  v.  Pridd  (g-),  the  plaintiff  brought  trespass 
for  that  the  defendant  assaulted,  ill  treated,  and  carried 
away  his  wife,  and  detained  her  for  half  a  year,  by  means  of  which 
he  lost  the  comfort  and  society  which  he  should  otherwise  have  had 
with  his  said  wife.  After  verdict  and  judgment  for  the  plaintiff, 
error  was  brought  in  the  Exchequer  Chamber,  and  assigned  that  the 
husband  had  brought  the  action  for  the  battery  of  the  wife,  which 
he  could  not  do  without  his  wife,  and  had  recovered  damages  for  the 
battery,  and  therefore  that  the  judgment  was  erroneous.  But  all 
the  justices  and  barons  held,  that  the  husband  in  that  action  did  not 

(/)   Cro.  Jac.  501.  '  (9)  Cro.  Car.  89. 


DECLARATION— PA  RTI I  351 

recover  damages  fur  the,  battery  of  his  wife,  but  for  the  loss  which 
he  had  in  wanting  her  company.  That  the  /"  t  quod  consortium 
amisit  and  abduction  of  her  were  one  entire  conjoined  cause  of  action 
for  which  the  damages  were  given.  That  for  the  battery,  true  it 
was  that  the  wife  ought  to  have  joined  to  recover  damages,  and  that 
the  verdict  and  judgment  did  not  bar  the  wife  from  an  action,  after 
the  death  of  her  husband,  for  the  battery,  or  that  she  might  join  with 
her  husband  in  another  action.     And  judgment  was  affirmed  [1]. 

*In  the  case  of  Smith  v.  Jli.ron  (h  ),  it  was  held  that 
the  husband  alone  might  maintain  an  action  for  the  ma-  [  '352  ] 
licions  prosecution  of  the  wife,  by  means  of  which  he  was 
put  to  expense.  After  verdict  for  the  plaintiff,  upon  motion  in  arrest 
of  judgment,  grounded  on  the  omission  of  the  wife,  the  court  said, 
that  though  the  remedy  for  the  scandal  might  survive  to  the  wile,  it 
was  no  objection  to  the  husband's  action,  and  that  he  might  undoubt- 
edly proceed  for  the  battery  of  the  wife, per  quod  consortium  amisit. 
and  yet  the  action  for  the  beating  would  survive  to  the  wife. 

From  these  cases  it  appears,  that  the  husband  may  separately  main- 
tain an  action  for  the  damage  resulting  to  himself,  from  a  personal 
injury  they  might  have  maintained  a  joint  action  and  that  the  right 
of  action  would  survive  to  the  wife  for  the  independent  injury  done  to 
herself.  The  case  of  actionable  words  spoken  of  the  wife,  produc- 
ing special  damage  to  the  husband,  seems  to  be,  in  all  respects,  per- 
fectly analogous  to  those  cited ;  and  on  their  authority  it  may  be 
concluded,  that  a  husband,  for  such  words,  or  rather  for 
the  damage  resulting  from  them,  may  sue  without  'his 
wife.  And  it  seems  to  be  highly  reasonable  that  the 
husband,  in  respect  of  the  special  damage,  should  be  entitled  to  a 
separate  action.  In  case  the  words  had  not  been  intrinsically  ac- 
tionable, the  husband  musl  have  Bued  alone  ;  and  it  can  scarcely  be 
contended  that  the  injurious  quality  of  the  words  can  compel  him  to 
alter  the  nature  of  the  proceeding,  to  recover  for  the  separate  tort 
to  himself,  the  only  alteration  in  the  case  consisting  in  the  additional 
mischief  to  the  wife.  As  the  injuries  are  completely  distinct,  there 
seems  no  reason  why  the  remedies  should  not  be  equally   indepen- 

(h)  Str.  977.  See  also  Hyde  v.  Seyu  r,  B  M  d.  28.  Cro.  J.  CGI. 

[1]  In  Cowdcn  v.  Wright,  24  Wendell  429,  whiofa  w.is  an  actiou  by  the  father  for 
assaulting  and  beating  his  son  perqvol  scrvitium  amisit;  the  Supreme  Court  rtMntd 
a  judgment  because  the  jury  in  the  C.  P.  had  been  charged  that  in  estimating  the  dam- 
ages they  might  take  into  account  the  uouuJtJ  feelings  of  the  parents,  in  consequence 
of  the  beating  of  the  son. 


353  CIVIL  REMEDY. 

dent.  A  contrary  supposition  would  involve  this  absurdity,  that  by 
the  increased  virulence  of  the  words,  the  plaintiff  would  be  placed 
in  a  worse  situation  as  to  his  remedy,  since,  in  case  of  actionable 
words,  his  title  to  damages  would  become  dependent  upon  the  life 
of  his  wife,  and  would  be  extinguished  by  her  dying  before  judgment 
recovered. 

Where,  on  the  contrary,  the  words  spoken  of  the  wife  are  intrin- 
sically actionable,  the  husband  is  not  entitled  to  recover  in  a  joint 
action,  in  respect  of  any  mere  consequential  damage  to  himself.  In 
such  a  case,  therefore,  where  the  husband  and  wife  join,  it  would  be 

improper  to  allege    such    consequential    damage.     The 
[  *354  ]    error,  however,  would  be  aided  by  a  special  *verdict, 

which  excluded  the  consequential  damage  and  confined 
the  damages  to  the  detriment  sustained  by  the  wife  (i). 

NEXT  AS  TO  THE  JOINDER  OF  SEVERAL  DEFENDANTS. 

Where  the  wrongful  act  is  the  joint  act  of  two  or  more,  the  plain- 
tiff may   proceed  against  them  in  one  and    the  same    action  ;  as, 
where   the    slander   is  contained  in  affidavits  made  by 
[  *355  ]    two,    *but    so    connected    as    to    form    one    slanderous 
charge  (&)  [1]. 
But  where  two  persons  speak  the  same  words,  the  plaintiff  must 
bring  separate  actions,  for  the  acts  are  several  in  their  nature,  and 
the  tort  of  one  is  not  the  tort  of  the  other. 

The  defendants  said  to  the  plaintiff  (/),  "  Thou  hast  the  plate  of 

(i)  2  Mod.  66.  1  Lev.  3.  2  Lev.  101.  the  per  quod  could  only  be  taken  in  ag- 
Com.  Dig.  Pleader,  C.  87.  In  the  case  gravation,  as  if  the  words  in  themselves 
of  Russell  v.  Come.  1  Salk.  119.  Holt,  actionable  be  spoken  of  a  wife,  and  the  hus- 
R.  699.  6  Mod.  127.  The  husband  and  band  and  wife  bring  the  action,  and  con- 
wife  brought  trespass  and  false  imprison-  elude  per  quod,  &c.  the  husband  lost  his 
ment  for  the  imprisonment  of  the  wife,  by  customers,  it  would  be  well,  for  the  words 
means  of  which  the  domestic  affairs  of  the  being  in  themselves  actionable,  the  per 
husband  remained  undone,  to  the  damage  quod  should  be  taken  in  aggravation,  all 
of  both.  After  verdict  for  the  plaintiff,  it  which  the  court  allowed, 
was  moved,  in  arrefct  of  judgment,  that  But  Lee,  C.  J.  is  reported  to  have  said 
the  business  of  the  husband  remaining  un-  (Str.  1094) ,  "  In  a  manuscript  note  which 
done,  could  not  be  to  the  damage  of  the  I  have  seen  of  this  case  in  Salkeld,  Holt, 
wife,  and  that  for  such  damage  the  bus-  C,  J.  says,  '  I  will  not  intend  that  the 
band  ought  to  have  brought  the  action  judge  suffered  the  husband's  business  re- 
alone.  But  it  was  answered,  that  the  maining  undone  to  be  given  in  evidence.'  " 
action  being  well  brought  and  conceived  Vc)  2  East.  426. 
for  the  imprisonment,   what  came  under         (0  ^r0,  ^ac-  6*<- 

[1]  To  the  same  effect  see  Thomas  v.  Rumsexj,  6  Johns.  R.  27.  Harris  v.  Hunting- 
ton, 2  Tyler,  147,  and  Patten  v.  Gurney,  17  Mass.  R.  182. 


DECLARATION— INDUCEMENT. 

J.  S.,  and  we  charge  thee  with  that  felony."  After  verdict  for  the 
plaintiff,  in  an  action  againsi  both,  judgment  was  arrested.  And 
the  case  of  an  action  for  mere  Blander  differs  in  this  respect  from 
an  action  for  charging  the  plaintiff  with  felony,  and  procuring  him 
to  be  indicted  ;  for,  in  the  latter,  the  act  of  the  defendants  may  be 
joint,  and  the  plaintiff  may  proceed  against  them  in  the  Bame  ac- 
tion ( in  ) . 

Though  the  husband  and  wife  Bpeak  the  same  words,  the  plaintiff 
must  bring  different  actions,  and  the  court  will  not  permit  them  to 
be  consolidated,  for  it  would  be  error  to  join  the  wife  for  words 
spoken  by  the  husband  only,  and  the  declaration  (//)  would  be  ill 
cither  upon  demurrer  or  in  arrest  of  judgment. 

But  where,  in  an  action  against  husband  and  wife  for 
speaking  of  the  plaintiff  certain    "scandalous  words,  the    \   *356  J 
jury  found  the  husband  guilty,  and  the  wife  not  guilty,  the 
plaintiff  had  judgment ;  for  though  the  action  ought  not  to  have 
been  brought  against  both,  and  the  declaration   would   have   been 
held  ill  on  demurrer,  yet  the  verdict  cures  the  error  (o). 

Counts  for  oral  and  written  slander  may  be  joined  in  the  same 
declaration  (;/),  so  a  count  for  slander  may  be  joined  with  one  for  a 
malicious  prosecution  (cf). 

OP   THE   AVERMENTS. 

The  declaration  in  this,  as  well  as  in  every  other  action,  consists 
of  a  clear  and  technical  statement  of  the  facts  necessary  to  sup- 
port the  complainant's  suit;  so  that  they  may  be  understood  by  the 
party  who  is  to  answer  them,  by  the  jury  who  are  to  ascertain  the 
truth  of  the  allegations,  by  the  court  who  are  to  give  judgment  upon 
them  (/•)  and  that  the  parties  may  afterwards  avail  themselw 
the  judgment  (s). 

It  has    been   at  all    times  the   fashion   to   preface  the    |[   *867 
legal  enunciation  of  the  plaintiff's  case  with  a  prelimi- 
nary panegyric  upon    his    character;   this  is    Buperfluous,    since  it 
docs  not  affect  the  gist  and  essence  of  tin1  act  inn.      A  man  of  had 
character  is  not  to  be   represented  as  worse  than  he   really  is,  and 

(m)   B.N.  P.  5.  (/))    h'inj  v.    Waring,  5  Esp.  C.  13. 

(/()    Swithen  and  his    Wife  v.   Vincent  (a)  Manning  v.  Fitzherbert,  Cro.  Car. 

and  his  Wife,  2  Wils.227.  Subly  v.  MM,  271. 

B.  N.  P.  5.  (r)  Cowp.  G82.   Com.  Dig.  Pleader,  C. 

(o)  1    Roll.   Abr.   281.    (o)   pi.    1  Sty.  P.  17.   Co.  Litt.  388.     2  B.  &  P.  207. 

349.  Com.  Dig.  Pleader,  c.  87.  («)  8  M.  &  S.  116. 

Vol.  I.  28 


357  CIVIL  REMEDY. 

therefore  is  entitled  to  a  compensation,  to  be  measured  by  the  excess 
of  the  scandal  beyond  what  is  really  due  to  him.  In  oneinstance  (t), 
indeed,  it  appears  that  the  plaintiff's  announcing  himself  to  be 
of  good  fame,  tempted  the  defendant  to  plead,  that  at  the  time  of 
publishing  the  words  the  plaintiff  was  not  of  good  fame ;  but  the 
plea  was  held  to  be  bad,  since  it  answered  matter  of  inducement 
which  did  not  .require  any  answer. 

In  a  modern  case,  the  plaintiff,  in  an  action  for  a  libel,  imputing 
to  him  seditious  principles,  prefaced  his  declaration  with  a  boast  of 
the  uniform  loyalty  of  his  conduct;  it  appeared  that  he  had  been 
some  time  in  confinement  under  the  sentence  of  the  court  for  pub- 
lishing a  seditious  libel ;  and  the  Lord  Chief  Justice  (u)  animad- 
verted on  the  impropriety  and  absurdity  of  such  a  preamble. 

The  allegations  relate  to  the  act  of  publication,  the  matter  pub. 
lished,  the  application  of  the  matter  published,  the  mo- 
[  *358  ]    live  *in  publishing,  and  to  the  damage  occasioned  by  it. 
First,  as  to  the  act  of  publication. 
This  is  either  of  a  libel,  or  of  oral  slander. 

In  the  case  of  a  libel,  it  appears  that  a  publication  in  effect  must 
be  stated,  though  no  particular  form  of  words  is  required.  In  the 
case'of  Baldwin  v.  E/phinstone  (x),  it  was  assigned  for  error,  that 
in  the  second  count  the  defendant  was  charged  with  having  printed 
the  libel,  and  having  caused  it  to  be  printed  in  the  St.  James's 
Chronicle,  but  was  not  charged  with  having  published  it.  After 
argument  in  the  Exchequer  Chamber,  the  Justices  and  Barons  were 
all  of  opinion  that  the  judgment  ought  to  be  affirmed.  That  there 
are  various  modes  of  publication,  and  no  technical  words  are  neces- 
sary to  describe  it ;  that  it  is  sufficient  if  there  be  stated  in  the  de- 
claration such  matter  as  amounts  to  a  publication  without  using  the 
formal  term  published,  and  the  jury  are  upon  the  evidence  to  decide 
whether  a  publication  be  sufficiently  proved  or  not.  That  printing 
a  libel  may  be  an  innocent  act,  but  unless  qualified  by  circumstan- 
ces, shall  prima  facie  be  understood  to  be  a  publishing:  it  must  be 
delivered  to  the  compositor  and  other  subordinate  work- 
[  *359  ]  men.  That  Sprinting  in  a  neiospaper  admits  no  doubt 
upon  the  face'of  it.  The  court  further  observed,  "  It  is 
stated  that  he  caused  to  be  printed."  This  confirms  the  fact  of 
publication,  because  it  calls  in  a  third  person  as  agent,  to  whom  the 
libel  must  have  been  communicated.  In  short,  the  count  does  not 
state  generally,  as  it  might  have  done,  that  the  libel  was  published, 

(/)   Strachey's  case,,  Sty.  118.       (w)  Lord  Ellenborough,  C.  J.       (x)  2  Bl.  K.  1037. 


DECLARATION— PUBLICATION.  359 

but  it  expresses  the  particular  moil'  of  publication,  viz:  in  a  news- 
paper. It  thereby  puts  the  publication  in  issue,  and  the  jury  have 
found  it  bo. 

Ii  musl  be  observed,  that  this  was  after  verdict,  which  was  relied 
upon  by  the  court,  and  probably  the  declaration  would  have   I 
considered  to  be  defective  upon  special  demurrer,  for  not  Btating  a 
publication  in  more  explicit  terms. 

In  this  case,  too,  great  Btress  was  Laid  upon  the  circumstance  that 
the  defendant  had  caused  the  libol  to  be  printed  in  a  newspaper;  had 
the  allegation  been  simply,  that  the  defendant  printed  and  caused 
to  be  printed  the  libel  in  question,  it  would  have  been  difficult 
have  construed  it  into  an  averment  that  he  published,  for  a  man  may 
print,  and  therefore  cause  to  be  printed,  without  the  aid  or  privity 
of  others. 

The  term  published  is  the  proper  and  technical  term  to  1"' 
in  the  case  of  libel,  without  reference  to  the  precise  degree  in  which 
the  defendant  has  been  instrumental  to  such  publication; 
'since,  if  he  has  intentionally  lent  Ids  assistance  to  its  [    '360    ] 
existence  for  the  purpose  of  being   published,  his  instru- 
mentality is  evidence  to  show  a  publication  by  him  (y). 

In  a  declaration  for  words  spoken,  it  is  sufficient  to  aver  that  the 
defendant  spoke  in  the  presence  (-)  of  divers  persons,  without  alleg- 
ing that  those  present  either  heard  or  understood  them,  and  it  will 
be  intended  that  they  did  hear  and  understand  the  words  till  the 
contrary  appear. 

But  it  would  be  insufficient  to  aver  that  the  words  were  Bpokeo, 
without  stating  them  to  have  been  spoken  in  the  prosence  of  Borne 
one  («),  or  without  some  averment  which  necessarily  implied  a  pub- 
lication to  a  third  person,  as  that  the  defendant  palam  etpublice  I 
promulgavit  <le  querent' . 

It  has  been  doubted  whether  it  be  sufficient  to  lay  the  words  to 
have  been  spoken  under  a  cumque  etiam,by  way  of  recital  (c) ; 
but  in  the  case  of  Mors  v.  Tliacker  I  '/>.  ii  was  derided. 
that  such  an  allegation  in  an  action  on  the  case  is  '_rood,    |    '861    J 
though  (as  was  said)  it  would  be  otherwise  in  trespass. 

If  the  words  be  spoken  in  a  foreign  language,  an  averment  is 
necessary  to  shew  that  the  hearers  understood  them  <'  )  ;  and  even 

{y)   Lamb's  case,  9  Rep.  (/<)  I 

(;)  Cro.  E.  480.   Noy.  57.  Golds.  119.        (c)  2  Mod.  41. 

Cro.  J.'3'J.     Cro.  Car.  199.  2  Lev.  198. 

(a)  Sty.  70.  (e)  (  ,,     B,  8  B.     Civ.  B.  - 


361  CIVIL  REMEDY. 

where  Welsh  words  were  averred  to  have  been  spoken  in  Monmouth- 
shire, which  once  was  part  of  Wales,  judgment  was  arrested  after 
verdict  for  the  plaintiff,  because  it  was  not  averred  that  they  were 
spoken  before  Welshmen,  or  those  who  understood  the  Welsh 
tongue  (/). 

In  the  King  v.  Bereton  (g-),  the  indictment  stated  that  the  de- 
fendant "  Scrigsit  fecit  et  publicavil  seu  scribi  fecit  et  publicari 
causavit"  And  judgment  was  arrested  on  account  of  the  uncer- 
tainty of  the  disjunctive  charge ;  and  in  a  civil  proceeding,  such  an 
averment  Avould  probably  be  considered  defective,  if  pointed  out  by 
a  special  demurrer. 

Next  as  to  the  publication  of  the  illegal  matter. 

The  words  are  either  intrinsically  actionable,  or  they  derive  their 

illegality  from  collateral  circumstances ;  it  is  therefore  necessary  to 

inquire,  in  the  first  place,  how  the  mere  words  themselves  are  to  be 

stated  and  connected  with  the  plaintiff;  and  secondly, 

[  *362  ]    where  they  are  not  *in  themselves  actionable,  how  they 

are  to  be  connected  with  the  collateral  facts  from  which 

their  actionable  quality  is  derived. 

First,  as  to  the  statement  of  the  mere  words :  it  has  long  been 
settled,  that  the  declaration  or  indictment  must  profess  to  set  out 
the  very  words  published,  and  that  it  is  not  sufficient  to  describe 
them  by  their  sense,  substance,  and  effect. 

It  seems  (//.)  formerly  to  have  been  held  to  be  sufficient  to  set  out 
the  words,  not  in  English,  as  they  were  delivered,  but  in  the  Latin 
language  ;  the  permitting  which  clearly  recognized  the  propriety  of 
a  substantial,  in  contradistinction  to  an  actual  and  precise  statement 
of  the  very  expressions  used,  since  in  many  instances  it  would  be 
impossible  to  render  the  expressions  used  into  Latin  ones  perfectly 
synonymous. 

And  it  appears  (i),  to  have  been  the  opinion  of  Holt,  C.  J.  in  Dr. 
Drake's  case,  that  the  libel  might  have  been  set  forth  in  the  infor- 
mation in  Latin,  in  which  case  a  variance,  which  did  not  change  the, 

sen  se,  would  not  vitiate  it. 
[  *363  ]         *No  argument    can,  however,  be  drawn    from    this 
source,  in  support  of  a  substantial,  in   opposition  to  a 

(/)  Cro.  Eliz.  865.  for  uttering  traitorous  and  seditious  words 

(g)  8  Mod.  328.  -were  cited,  in  many  of  which  nothing  mor  e 

(h)  See  Hugh  Pyne's  case,   Cro.   Car.  than  the  Latin  translation  was  set  out . 

117,  which  was  submitted  to  all  the  judges         (i)  Holt.  R.  351. 

for  their  opinion,  when  many  indictments 


DECLARATION— PUBLICATION.  363 

precise  statement,  the  doctrine  having  been  virtually  overruled; 
for  if  it  was  sufficient  to  Bot  out  a  Latin  translation  whilst  the  pro- 
ceedings wore  drawn  in  Latin,  it  would,  on  the  -am  •  principle, after 
the  passing  of  the  Btatutes  (A),  which  direct  the  English  to  be  sub- 
stituted for  the  Latin  language  in  all  legal  proceedings,  have  been 
Bufficient«to  set  out  a  libel  published  in  French  or  Italian  merely  by 
an  English  translation.  But  in  the  case  of  Zenobio  v.  Axtell  <h. 
judgment  was  arrested,  because  a  libel  published  in  French  bad  not 
been  sot  out  in  the  original  language,  but  was  merely  described  by 
way  of  translation.  And  Lord  Kenyon,  C.  J.  upon  that  occasion 
irved,  thai  from  the  uniform  current  of  proceedings  it  a]  peared 
that  the  original  words  should  be  set  forth  with  an  English  transla- 
tion showing  their  application  to  the  plaintiff. 

In  the  case  of  the  Queen  v.  Dr.  Drake  (m  ).  Bolt,  C.  J.  i 
ported  to  have  said.  k-  A  libel  may  be  described  either  by  the  sense 
or  by  the  words:"  but  by  the  Chief  Justice's  .application  of  this 
doctrine,  it  appears  that  he  did  not  mean  that  a  mere 
description  of  the  words  by  their  *effect  would  be  sum-  [  *364  ] 
cient;  for  lie  observes,  "A  libel  maybe  described  either 
by  the  sense  or  by  the  words  of  it,  and  therefore  an  information, 
charging  that  the  defendant  made  a  writing  containing  such  words, 
is  good,  and  in  that  case  a  nice  exactness  is  not  required,  because 
it  is  only  a  description  of  the  sense  and  substance  of  the  libel ;  and 
if  the  jury  find  some  omissions,  it  will  be  sufficient  if  some  fords 
be  proved:'  The  latter  expression,  "if  some  words  lie  proved," 
clearly  evinces  that  the  very  words,  and  not  merely  their  effect, 
were  to  be  set  out;  and  that  his  lord-hip  meant  to  say,  not  thai  it 
is  unnecessary  to  state  the  words,  but  that  they  may  be  stated  two 
ways,  either  by  their  tenor,  in  which  case  the  pleader  undertakes  to 
set  out  the  words  with  the  greatest  precision,  and  the  libel  given  in 
evidence  musl  agree  exactly  with  the  one  set  out  in  the  information, 
or  by  stating  that  the  defendant  made  a  writing  containing  inter  alia 
the  words  Bet  out,  in  which  case  it  would  be  necessary  to  set  out 
those  only  which  are  material,  and  a  variance  would  not  be  fatal, 
Unless  th  er  I  altered. 

In  the  case  of  Newton  v.  Stubbs  iction  was  brought  for 

words  spoken,  which  were  set  out  in  the  declaration  ad 

tenorem  el  effectum  sequentum  :  "  'and  alter  verdict  for      [    *365  ] 

(k)  2  G.  2,  c.  2,  and  6  G.  2,  c.  1 1.  I   R.  162. 

(m)  3  Salk.   224.     Holt,   11.    847,  340,         (n)  8 Mod. 71. 

350;  426.     11  Mod.   Qo. 

•2$* 


365  CIVIL  REMEDY. 

the  plaintiff,  judgment  was   arrested,  because  it  was  not  expressly- 
alleged  that  the  defendant  spoke  the  very  words. 

In  the  case  of  the  King  v.  Bear  (o),the  indictment  was  for 
composing,  writing,  making,  and  collecting  several  libels  in  uno  quo- 
rum continetur  inter  alia  juxta  tenorem,  et  ad  effectum  sequentem, 
and  the  words  were  then  set  out. 

And  it  was  agreed  that  ad  effectum  would  of  itself  have  been 
bad,  since  the  court  must  judge  of  the  words  themselves,  and  not  of 
the  construction  the  prosecutor  puts  upon  them,  but  that  the  words 
juxta  tenorem  sequentem  import  the  very  words  themselves  (o). 
And  it  was  held,  that  the  words  "  ad  effectum  "  were  loose  and  use- 
less words  ;  but  that  the  words  juxta  tenorem  being  of  a  more  cer- 
tain and  strict  signification,  the  force  of  the  latter  was  not  hurt  by 
the  former,  according  to  the  maxim  "  utile  per  inutile  uon  vitiatur" 

In  the  same  case,  that  of  Ford  v.  Bennet  (//),  was  referred  to, 
where,  in  a  special  action  upon  the  case  against  Bennet  and  others, 
the  plaintiff  declared  that  the  defendants,  at  Saltashe,  procured  a 
false  and  scandalous  libel  against  the  plaintiff  to  be  written  under 
the  form  of  a  petition,  and  the  *libel  was  set  forth  after 
[  *306  ]  the  word  continetur  ad  tenorem  et  ad  effectum  sequen- 
tem. Two  were  found  guilty,  upon  which  judgment  was 
entered  for  the  plaintiff,  and  afterwards,  upon  error  brought  in  the 
Exchequer,  the  judgment  was  affirmed,  the  exception  taken  to  the 
words  ad  effectum  having  been  overruled  without  consideration. 
And  Holt,  C.  J.  said,  that  he  then  thought  the  judgment  to  be  given 
with  too  great  precipitation  ;  but  he  afterwards,  upon  great  consid- 
eration, had  esteemed  it  to  be  very  good  law.  And  the  King-  v.  Ful- 
ler (q),  and  the  King-  v.  Young(r~),  were  cited  as  authorities  in  point; 
and  the  whole  court  were  of  opinion,  that  notwithstanding  the  excep- 
tion, the  indictment  was  good  ;  but  that  if  it  had  been  only  ad  effec- 
tum sequentem,  it  had  been  ill,  because  it  had  not  imported  that 
the  words  were  the  specific  words  which  were  in  the  libel. 

In  the  above  case  of  the  Queen  v.  Drake  (s),  a  distinction  was 
taken  between  an  action  for  libel  and  one  for  words,  and  that  in  the 
latter  case  it  would  be  sufficient  to  find  the  substance  [1].     But  in 

(0)  2  Salk.  417.  ('•)  Mich.  4  W.  &  M. 

(p)  1  Lord  Ray.  415.  («)  Holt.  R.  348,  350. 

(3)  Mich.  4  W.  &  M. 


[1]  In  an  action  for  words  it  is  sufficient  to  prove  the  substance  of  the  words  laid  in 
the  declaration,  Miller  v.  Miller,  8  Johns.  R.  74.  See  also  Kennedy  v.  Lowry,  1  Bin- 
ney,  393;  Kyzer  v.  Grubbs,  2  McCord,  305;  Ney  v.  Otis,  8  Mass.  122. 


STATEMENT  OF  THE  WORDS. 

case  of  words  spoken,  as  well  as  written,  it  lias  been  held 
to  be  necessary  to  set  out  the  words  'themselves,  and    [  '■ 
that  it  is  sufficient  to  aver  that  the  defendant  Bpoke 
these  words  uel  his  simtiia  (t)  [1]. 

In  Dr.  Sacheverell'a  case,  the  defendant  having  ' n  impeached 

for  preaching  several  sermons,  the  question  arose,  whether  the  ob- 
jectionable parts  oughl  not  to  have  l d  Bet  oul  od  the  face  of  the 

impeachment;  and  it  was  proposed  to  all  the  judges,  whether,  by 
the  law  of  England  and  eon-taut  practice  in  all  prosecutions  by  in- 
dictmenl  or  information,  for  crimes  and  misdemeanors,  by  writing  or 
Speaking,  the  particular  words  Bupposed  to  be  criminal  must  not  be 
expressly  specified  in  such  indictment  or  information  ;  and  the  judg- 
es present  unanimously  answered  the  whole  of  this  proposition  in 
the  affirmative  (it ). 

In  the  ease  of  Cooke  v.    Cox  (x)  it  was  held   that  a 
*count  which  alleged  that  the  defendant  had  falsely  and    [  '• 
maliciously  charged  and  asserted,  and  accused  the  plain- 
tiff (a  tradesman)  of  being  in  bad  and  insolvent  circumstances,  was 
bad  in  arrest  of  judgment ;  and  the  court  came  to  this  decision,  upon 
a  review  of  all  the  former  authorities,  and  relied  particularly  on  the 
opinion  given  by  the  judges,  in  Sacheverell's  case.     And  the  court 
intimated,  that  there  was  no  difference  in '  this  respect,  between 
criminal  cases  and  civil  ones,  where  the  action   arises  ex  delicto. 
And  again  in  Wrightr.  Clements  (y),  where  the  declaration  stat- 
ed, that  the  defendant  published  a  libel,  containing  false  and    BCan- 
dalous  matter  concerning  the  plaintiff,  in  substance  as  follows  ;  and 

(0  Cro.  J.  150.     1  Vin.  Ah.  68S,jpl.  1.  (*)  8   M.  &   B.    110.     Bo  in    Wood*. 

Br.  Ac.  sur.  le.  cas.  pi.  112.    4  Ed.  B.     1  Brou  n,  6  Taunt.                     beld,  that  to 

T.  R.  217.  allege  that  the  defendant  had  published  a 

(»)  9Bt.Tr.  Ann.     Bat  the  Lords,  not-  libel,  purporting  that  the  plaintifl 

withstanding  this  opinion  of  the  judges,  was  of  bad  quality,  was  bad  on  demurrer. 

resolved,   that  tlicy  would  determine  the  It  was  observed,  bj  the  court,  in  the 

impeachment  according  to  the   law  of  the  case   of  Cooke   v.    Cox,   abuse   oited,  that 

land,  and   the   law  and  usage  of  parlia-  what  was  supposed  to  hate 

ment;  and  that,  according  to  the  law  and  Lord  Sardwieke,  in  As/so*  \ 

usage  of  parliament,  it  was  not  necessary  temp.  Hardw.  106,                 led  [namhv 

iu  prosecutions  by    impeachment  for   high  take. 

crimes  and  misdemeanors,  bj  speaking  or  (y)  3  D.  ft  A.  503. 
writing,   to   specify    the  particular  words 
supposed  to  be  criminal. 


[1]  In  Bell  v.  Bugg,  4  Munf.  2C0,  a  declaration  charging  the  defendant  with  having 
spoken  certain  words  or  words  of  the  same  import  held  good  after  verdict. 


368  CIVIL  REMEDY— DECLARATION. 

then  set  out  the  libel  with  innuendoes,  the  judgment,  after  a  verdict 
for  the  plaintiff,  was  arrested. 

Where  the  words  have  been  spoken,  or  libel  published  in  a  for- 
eign language,  they  must  be  set  out  in  the  original  language,  or  the 
declaration  will  be  bad  in  arrest  of  judgment  {z).     But, 
[  *369  ]    *it    seems,    that    an    English    translation    ought  to    be 
added  [1]. 

It  is  next  to  be  considered  with  what  degree  of  particularity  and 
certainty  the  words  or  libel  must  be  averred. 

First,  in  the  case  of  oral  slander. 

It  has  been  said  (a),  that  the  strictness  formerly  observed  as  to 
proving  the  words  precisely  as  laid,  has  been  abandoned,  and  that 
it  is  sufficient  to  prove  the  substance  of  them ;  but,  at  the  present 
day,  it  seems  to  be  requisite  to  prove  some  of  the  words,  though 
not  all,  as  they  are  laid  even  in  the  case  of  oral  slander. 

If  the  slander  (b~)  be  contained  in  words  of  interrogation,  it  must 
be  so  laid,  and  must  not  be  averred  to  have  been  spoken  affirma- 
tively. 
[  *370  ]  *In  the  case  of  the  Lady  Radcliffe  v.  Shubly  (c),  the 
words  laid  in  the  declaration  were,  "  She  is.  as  very  a 
thief  as  any  that  robbeth  by  the  highway  side."  The  jury  found 
that  the  defendant  spoke  these  words,  "  She  is  a  worse  thief  than 
any  that  robbeth  by  the  highway  side."  And  Wary,  C.  J.  was  of 
opinion,  that  "  as  very  a  thief,"  and  "  a  worse  thief,"  are  all  one; 
but  Gawdy  and  Fenner,  justices,  ruled  that  the  words  did  not  agreed 
with  the  declaration. 

So,  an  indictment  for  speaking  these  words  of  a  magistrate  (d), 

(z)   Zenobia  v.   Axtell,  6  T.  R.  162.     3  court  were  informed,  and   took  notice  that 

M.  and   S.    116.     But   in   an   anonymous  in  some  counties  the  term  healer  was  under- 

case,   Hobart,    126,  the   plain  tiff  declared  stood  to   mean  a  smotherer  or  coverer  of 

against    the    defendant     for    calling    him  felons. 

Idoner  in  the  Welsh  tongue,  and  had  judg-         (u)  B.  N.  P.  5,  cites  2   Roll.  Ab.  18,  a. 

ment,  although  he   did   not  aver  that  the  Jlvarillo  v.  Rogers,  T.  T.  1773. 
word  amounted  to  a  charge  of  forgery ;  and         (6)  2  East,  434.     8  T.  R.  150.     4  T.  R. 

the  case  was  cited,  in  which   the  plaintiff  217. 

had  judgment  for  the  words,  "  Thou  art  a  (c)  Cro.  Eliz.  224.     But  see  Dyer,  75. 

healer  of  felons,"  without   any  averment         (d)   R.  v.  Berry,  4  T.    R.   217.     Blisset 

how   the  words  were   taken;  because   the  v.  Johnson,  Cro.  Eliz.  503,  contra. 


[1]  In  Wormoulh  v.  Cramer,  3  Wendell,  394,  the  slanderous  words  were  set  forth 
in  the  declaration  in  English ;  it  was  proved  they  were  spoken  in  German,  and  were 
understood  by  the  bystanders.  The  plaintiff  was  nonsuited,  and  the  court  refused  to 
grant  a  new  trial,  holding  that  the  proper  mode  of  declaring  in  such  cases  is  to  state  the 
words  in  the  foreign  language,  to  aver  that  they  were  understood  by  those  who  heard 
them,  and  to  give  their  signification  in  English. 


STATEMENT  OF  THE  WORDS.  370 

"lie  is  a  broken  down  justice,"  is  not  satisfied  by  evidence  of  the 
words,  "  Von  arc  a  broken  down  justice."  Lord  Cenyon,  indeed, 
in  this  case,  held  at  nisi  prios,  that  it  was  sufficient  to  prove  the  tub- 
stance  of  the  words  s  toted,  and  the  defendant  was  found  guilty; 
but  the  point  was  reserved,  in  order  that  a  verdict  of  acquittal  might 
bo  entered,  in  case  the  court  Bhould  be  of  a  different  opinion.  <>n 
motion  to  that  effect,  Buller,  J.  said,  that  there  was  a  case  in  Stran  . 
in  support  of  his  Lordship's  opinion,  but  that  it  had  sin©  over 

ruh-d  in  Lord  Mansfield's  time,  and  that  ho  himself  had  known  a 
variety  of  nonsuits  on  the  same  objection;  and  judgment  was  given 
for  the  defendant  [1]. 

•So,  where  A.  <  e)  says  of  B.  and  C.  "You  have  com-    [  *1~1  ] 
mitted  such  an  offence,"  though  B.  and  C.  may  have  sepa- 
rate actions,  each  must  state  the  words  to  have  been  spoken  of  both. 
where  the  words  are  spoken  (/)  ironically,  they  must  l»c 
stated  as  spoken,  with  an  averment  that  they  were  spoken  ironically. 

Where  the  declaration  stated  these  words  of  the  plaintiff,  "  lie 
stole  a  sheep  of  his,"  (innuendo  of  the  defendant)  it  was  moved  in 
arrest  of  judgment,  that  his  must  refer  to  the  last  antecedent,  and 
so  that  the  words  were  repugnant,  for  a  man  cannot  steal  his  own 
sheep  (gO  ;  but  the  objection  was  overruled. 

Upon  the  authority,  however,  of  more  recent  cases,  it  seems  the 
variance  between  the  words  his,  as  used  in  the  declaration,  and  mine 
as  proved  in  evidence,  would  be  a  ground  of  non-suit. 

"Where  the  words  laid  in  the  declaration,  as  spoken  of  a  surv 
were,  "  Harrison  is  a  scoundrel ;  if  1  would  have  found  him  an  oven 
for  nothing,  and  given  him  after  the  rate  of    £20  per  cent,  upon  the 
amount  of  the  charges  for  work  and  material-,  he  would 
have  passed  my  account."     *The  first  witness  called  lor    [   '".7:2  ] 
the  plaintiff  proved  these  words:  "  Harrison  is  a  scoun- 
drel; and  if  1  had  allowed  j£20  per  cut.  he  would  have  passed  my 
account."     The  second  witness  proved  the  words,  "  Harrison  is  a 
scoundrel;  and  if  1   had  deducted    620   per  cent,    he    would   have 
passed  my  account." 

Lord  Ellcnborough,  C.  .1.  said,  that   words  to   l,,-  actionable, 

(«)  Cro.  Ca.  512.  (/ )  11  Mod.  B6.  (g)  8  Mod.  30. 


[1)  Proof  of  words  spoken  in  the  second  person  will  not  BUpp  rt  a   I  'leging 

the  speaking  to  have  been  in  the  third  person,  MeCon  ellv.M  C  y,7Serg    mdBawle 
223:  so  hell  on  the  Btrength  of  the  decision  of  Lord  MLurai  u  u>  in  Avarillo  v.  fi 

Bull.  N.  P.  5.     Sec  also  Miller  v.  Miller,  «  Johns.  B    71. 


372  CIVIL  REMEDY— DECLARATION. 

should  be  unequivocally  so,  and  he  proved  as  laid;  but  that,  as  the 
words  were  proved,  they  did  not  support  the  declaration.  The 
words  of  the  declaration  were,  "  If  he  would  give  me  X20  per  cent." 
that  might  mean  something  to  himself,  by  which  he  would  be  himself 
benefited  to  the  prejudice  of  his  employer,  but  the  words  proved 
were,  "  If  he  would  allow,"  or  "  if  he  would  deduct  <£20  per  cent.'' 
These  words  might  import  an  allowance  or  deduction  from  the  plain- 
tiff's bill  for  the  benefit  of  his  employer,  and  were  of  a  different 
meaning  and  import." 

Where  the  words  alleged  in  the  declaration  were,  "  This  is  my 
umbrella,  he  stole  it  from  my  back  door,"  and  the  words  proved 
were,  "  It  is  my  umbrella,  c^c."  and  it  appeared  that  the  words  were 
not  spoken  in  the  house  where  the  umbrella  then  was,  it  was  held, 
that  the  variance  was  fatal ;  for  the  words,  as  laid,  imported  to  have 
been  spoken  concerning  a  thing  present,  those  proved 
[  *373  ]  *wero  spoken  concerning  a  thing  not  present  at  the 
time  (£). 

Where  the  words  were  spoken  in  answer  to  a  question,  and  the 
injurious  meaning  is  to  be  collected  not  merely  from  the  terms  of  the 
answer,  but  from  the  question  and  answer  together,  the  words  must 
not  be  laid  as  a  substantive  and  affirmative  proposition,  but  accord- 
ing to  the  fact  (Jc).  If  the  defendant  has  not  made  an  assertion  as 
his  own,  but  has  merely  alleged  that  some  other  person  had  reported 
the  fact,  it  must  be  so  averred,  and  if  it  were  to  be  averred  substan- 
tively, that  the  defendant  had  reported  the  fact,  the  variance  would 
be  fatal  (J)  ;  for  the  charge  is  different,  and  open  to  a  different  de- 
fence. Where  the  declaration  laid  the  words  as  follows,  "  A.'s  wife 
is  a  great  thief,  and  ought  to  have  been  transported  years  ago  ;"  and 
the  words  proved  were,  "  A.'s  wife  is  a  bad  one,  and  ought,  &c."  it 
was  held,  that  the  words  were  misdescribed  ;  the  words  laid  imputed 
an  act,  those  proved,  suspicion  only  (w). 

And  variance  may  consist  either  in  the  addition  or  omission  of  one 
or  more  words,  or  in  the   substitution  of  one   word  for  another. 

First,  in  the  addition. 
[  *374  ]        *It  is  not  necessary,  in  case  of  oral  slander,  to  prove 
all  the  words,  provided  such  of  them  be  proved  as  are 
material  [1]. 

(i)    Walters  v.  Mace,   2  B.  &  A.  756.         (I)     Bell  v.  Byrne,  13  East.'  554. 
(/<•)  See  Bromage  v.    Prosser,   4  D.  <§•        (m)  Hancock   v.    Winter,  2   M.    &   S. 
C.  217.  502. 

[1]  So  held  in  J\rorlh  v.   Van  Slyck,  2  Hill  282. 


STATEMENT  OF  THE  WORDS.  71 

The  plaintiff  declared  that  the  defendant  Baid  of  him,  "  IT"  is  a 
maintainor  of  thieves,  and  a  strong  thief."  The  jury  found  the 
whole  to  have  been  Baid  except  the  word  strong,  and  it  was  adjudg- 
ed for  the  plaintiff  (»)  [aa~\. 

And  even  where  special  damage  i  the  gi  I  of  the  action,  it  is 
sufficient  to  show  that  the  loss  was  sustained  in  consequence  of  any 
of  the  words  Laid  in  the  declaration  (<> )■ 

But  if  all  the  word-,  as  laid,  constitute  but  one  charge,  the  whole 
must  be  proved. 

The  declaration  stated  that  the  defendanl  Baid  of  the  plaintiff, 
"  He  is  Belling  his  coals  at  one  shilling  a  bushel,  to  pocket  the  money, 
and  become  a  bankrupl  to  cheat  his  creditors."  Opon  the  trial,  the 
words  "and  become  a  bankrupt,"  were  not  proved,  and  the  plaintiff 
was  nonsuited  (/>). 

And  the  reason  applies  with  equal  force  in  the  case  of  libel, 
where  the  addition  of  a  word  not  proved  would  be  fatal,  if  it  at  all 
affected  the  sense,  whether  the  words  were  set  out  under  an  inti  r 
alia  or  a//  tenor  em. 

With  respect  to  variances  from  omission  it  *seems.  in  *375  | 
case  of  oral  slander,  to  be  suflicient  to  set  out  the  words 
which  are  material,  and  it  is  not  even  necessary  to  state  words 
which  may  qualify  the  objectionable  ones  ;  and  in  the  case  of  libel, 
it  may  be  averred  in  uno  quorum  continetur  inter  alia  SfC.  (>/): 
for,  if  something  else  were  added,  which  did  in  fact  qualify  the  ob- 
jectionable words,  it  may  be  given  in  evidence  on  not  guilty  (/)• 

(n)    BurgU's  case,  Dyer  75.  must  take  care   of   yourself  there,   mind 
[</  a]  Where  the  words  laid  in  the  dec-  what  you  are  about,"  and  were  alleged  to 
laration  wore,  "I  will  do  my  best  to  trans-  have  '  een  spoken  to  a  person  about  to  sop- 
port  liim,  as  ho  has  been  working  forme  ply  the  plaintiff  with   goods,    it  whs  held 
sometime,  and  has   been  robbing  me  all  that   the  omission   to  prove  ti- 
the while,"  the  proof  was  of  t  he  words,  italics  was  not  a  material  varianoe.    Orp- 
"  he  lias  worked  for  me  Bome  time,  and  wood  \.   Ba    ■    .  I  Bingh.  261. 
has  been  continually  robbing  me;"  it  was        Bo  where  the  plaintiff  declared  in  ret 
held  that  the   variance  was  not  material  of  a  libel  apon   him,   in  his  character  of 
It  was  also  held  that  the  circumstance  of  surveyor  of  "  The  New   England  Compa- 
the  words  having  been  Bpoken  to  an  offi-  ny,"  itwas  hi 

cer,  who  had  a   warrant  to  search   the  an  employment  by  a  company,  generally 

plaintiff's    house  for  goods  Buspected   to  known  by  that  name      Rutherford  r.  Ep- 

havebeen  stolen  from  the  defendant,  made  ant,  6  Bingh.  461. 
no   difference.     Doncaster   v.    Hcwson,   2         («)   -  Bsp.  C. 
M.  and  R.  176.  (P)   **"**   v-    Pwib»'  2  &P    C'  491' 

In  another  case  in  which  the  words  laid         (7)   R.  t.  Br«reftm,  BMod      18 
in  the  declaration  were,  "  Warehawk,  you         (r)  8  Mod.  82 


375  CIVIL  REMEDY— DECLARATION. 

In  Sir  J.  Sydenham's  case  (s),  an  action  was  brought  for  these 
words  :  "  If  Sir  John  Sydenham  might  have  his  will,  he  would  kill 
all  the  true  subjects  of  England,  and  the  king  too ;  and  he  is  a 
maintainor  of  papistry  and  rebellious  persons."  The  defendant 
pleaded,  that  he  spoke  other  words,  absque  hoc,  that  he  spake  these. 
The  jury  find  that  he  spoke  these  words  :  /  think,  in  my  con- 
science, if  Sir  John  Sydenham,"  &c.  and  found  all  the  other  words 
verbatim,  and  concluded  si  super  totum  materiam,  he  spake  the 
words  forma  qua  the  plaintiff  declared,  they  find  for  the  plaintiff  to 
his  damage  of  160  marks,  if  otherwise,  for  the  defendant.  And 
three  of  the  judges,  Montague,  C.  J.  Croke,  and  Dodderidge,  J. 
held,  that  the  plaintiff  was  entitled  to  judgment,  since 
[  *376  ]  the  other  words  found  were  not  Vords  of  extenuation  or 
alteration  of  the  sense  of  the  former  words,  but  rather 
enforced  them,  and  that  there  was  no  cause  to  stay  the  plaintiff's 
judgment. 

"  For  though  the  plaintiff  declared  of  fewer  words  than  the  de- 
fendant spoke,  yet,  he  declaring  truly  that  the  defendant  spoke 
those  words,  upon  the  evidence,  it  appears  that  he  spoke  those  words 
which  were  actionable,  and  the  words  added  diminish  not,  nor  are 
an  alteration  of  the  sense  of  the  words  whereof  he  declares  ;  where- 
fore, although  the  issue  be  specially  found,  yet,  the  plaintiff  shall 
have  judgment." 

The  fourth  judge  (Houghton),  was  of  opinion,  that  the  omission 
of  part  of  the  words  proved,  though  the  sense  was  unaltered,  was  a 
fatal  variance. 

A  writ  of  error  was  afterwards  brought  upon  their  judgment,  and 
one  ground  of  error  assigned  was  the  variance  between  the  words 
alleged  and  those  proved  ;  and  of  this  opinion  were,  Hobart,  C.  J. 
of  the  Common  Bench,  Winch,  and  Denham ;  but  Tanfield,  C.  B. 
Warburton,  Bromley,  and  Hulton,  were  of  a  contrary  opinion, 
whereupon  the  judgment  was  affirmed  (f). 

With  respect  to  the  stating  of  libels,  as  a  copy  must 
[  *377  ]  be  set  out,  which  in  proof  is  to  be  *compared  with  the 
original,  it  seems  to  be  clear  that  any  variance  in  the 
mode  of  setting  it  out",  which  in  any  way  altered  the  sense,  would 
be  fatal ;  and  that  although  the  mere  mis-spelling  of  a  single  word 
would  not  be  material,  provided  it  was  not  altered  into  another 
word  of  a  different  meaning ;  yet  that  any  variance,  either  from 

(s)  Cro.  J.  407.  (0  Mich.  16  Jac. 


STATEMENT  OF  THE  WORDS. 

omission  or  addition,  which  affected  the  meaning,  would  also  be  fa- 
tal. 

For,  if  the  libel  alleged  vary  from  that  which  is  proved,  in 
materia]  respect,  they  cannot  be  identical,  and  the  cause  of  action 
alleged  cannot  he  the  same  with  that  proved. 

Tho  genera]  rule  will  be  besl  illustrated  by  actual  decisions. 

Bell  averred  that  Byrne  printed  and  published,  in  the  Morning 
Post,  the  following  libel  concerning  the  plaintiff,  as  purporting  to  be 
a  letter  written  from  A.  to  U.  O'Connor. — "  I  bave  Bold  all  my  pro- 
perty to  15.,  yet  it  may  still  go  on  in  my  name, and  the  rents  are  to 
be  transmitted  to  II.  Bell,  Esq.  Charter-House  Square.  .Mr.  Bell 
(meaning  tic  plaintiff, )  has  been  for  some  time  past  confined  in  E 
land,  on  a  charge  of  high  treason."      Upon   tin1  trial,  it  appeared, 

that  tic  paragraph  in  question  had  l u  published  by  the  defendant 

in  his  newspaper,  of  the  loth    of  May,  1810,  and  that  it   purported 
to  be  a  statement  of  a  speech  delivered  by  the  Attorney- 
General  for  'Ireland,  in  the  Irish  House  of  commons,  on         '7  I 
the  14th  of  Feb.  1799,  in  the  course  of  which   several 
letters  were  read  by  him.     The  defendant  objected  that  the  words 
"  Mr.  Bell  has  been  for  some  time  past  confined  in  England,  on  a 
charge  of  high  treason,"  did  not  constitute  part  of  the  letter  alleged 
to  have  been  read  by  the  Attorney-General,  but  were  published  as 
mere  comment  by  him  after  reading  the  letter,  and  were  therefore 
improperly  described  in  the  declaration,  as  purporting  to  be  part  of 
the  letter.     And  the  court  of  King's   Bench,  upon  a  motion  to  set 
aside    the  verdict  for  the  plaintiff,  and  enter  a  nonsuit,  were  of  opin- 
ion  that  the  misdescription  was  fatal,  and  tha*   the  defendant  should 
have    been  described    as    professing  to    publish   a    speech  of   the 
Attorney-General,  for  Ireland,  in  which  was  contained.  &c.  |  u  \. 

When:  the  libel  given  in  evidence  was  contained  in  a  book  pub. 
rished  respecting  Mr.  Cobbett,  by  the  defendant,  called  "The  Book 
of  Wonder-."  and  was  as  follows:  Many  well  intentioned  persona 
have  expressed  their  surprise  that  the  "  Enlightner "  should  have 
been  willing  i"  accept  of  a  Beai  in  corruption's  den,  purchased  with 
the  bank  notes  of  a  man  whose  "  incapability  and  basenoss  "  he  had 
so   powerfully   exposed.     To  convince   such   pel  I     * 

this  line  of  conduct 'was  Btrictly  patriotic,  we  have  only    [  *879   ] 
to  assure  them,  that  in  so  doing  he  was  walking  in  the 
footsteps  of  that  "  venerable  veteran,"  whose  "  creed  is  the  criterion 

(it)   Bell  v.  Byrne,  13  East,  664. 

Vol.  I.  29 


379  CIVIL  REMEDY— DECLARATION. 

of  excellence  "  (see  No.  195),  and  who,  in  an  article  of  that  creed, 
has  laid  it  down  as  a  maxim,  "  that  we  must,  in  fighting  the  enemy, 
not  reject  the  use  of  even  despicable  and  detestable  men,"  Cobbett 
v.  32,  p.  82.  The  libel,  as  set  forth  in  the  declaration,  omitted  the 
words  "  (see  No.  195),"  and  the  words  "  Cobbett  v.  32,  p.  82."  It 
was  held  that  the  variance  was  fatal ;  for  upon  reading  the  declara- 
tion, the  libel  would-be  understood  to  mean,  that  the  defendant  had 
himself  made  the  assertions  respecting  the  plaintiff,  but,  when  the 
libel  is  produced,  it  appears,  from  the  references  which  it  contains, 
that  the  paragraph  was  written  with  intent  to  expose  the  conduct 
not  of  the  plaintiff,  but  of  another  person  (a.-). 

Cnc  count  of  a  declaration  stated  the  words  of  a  libel  as  follows  : 
"  My  sarcastic  friend,  by  leaving  out  the  chorus  or  repetition  of 
Monsieur  T.'s  poem,  greatly  injures  the  tout  ensemble,  or  general 
and  combined  effect."  The  words  proved  in  evidence  were  :  "  My 
sarcastic  friend  MSIPOS,  by  leaving  out,"  &c,  and  it  was  held  by 
Lord  Ellenborough,  L.  C.  J.,  upon  the  trial  of  the  "cause 
[  *380  ]  that  there  was  a  material  variance  between  the  libel  de- 
clared on  in  that  count  and  the  libel  proved  (7/). 

"Where  a  declaration,  in  stating  a  libellous  paragraph,  imputing 
to  the  plaintiff  that  he  had  formerly  a  house  in  P.,  and  some  time 
prior  to  that  he  had  one  in  M.,  in  both  of  which  he  continued,  omit- 
ted the  words  of  which  it  was  held  that  the  variance  was  fatal  (~). 

But  it  is  by  no  means  necessary ,  even  in  case  of  libel,  to  set  out 
the  whole  of  the  obnoxious  publication  ;  it  is  sufficient  to  extract 
the  obnoxious  passages,  provided  their  sense  be  clear  and  dis- 
tinct (a). 

It  is  not  even  necessary  to  set  out  another  part  of  the  publication 
to  which  the  libellous  passage  refers,  provided  the  part  which  is  set 
out  be  in  itself  distinct  and  intelligible  (6). 

But  where  distinct  passages  are  extracted  from  the  same  libel  and 

set  out  in  the  declaration,  care  should  be  taken  to  distinguish  them, 

as  by  prefacing  them  with  the  words,  in  a  certain  part  of  which 

said  libel,  there  was  and  is  contained,  &c.  setting  out 

[  *381  ]    the  passage,  and  in   a  certain  other  *part  of  which  said 

libel  there  was  and  is  contained,  <fcc.  ;  for  if  the  facts 

(x)   Cartwright  v.    Wright,  5  B.  &  A.         l>)   B.  v.  Ererclon,S  Mod.  329.     Cro. 

615-  645.     Sidnam  v.  Mayo,  1  Roll.  R.  429. 

(t/)    Tabait  v.  Tipper,  1  Camp.  C.  350.  Cro.  J.  407. 

(2)     Cooke  v.   Smyth,    M'ClelL    and        (b)    Buckingham  v.  Murray.  1   C,  & 

Young,  250.  P.  46. 


STATEMENT  OF  THE  WORD-.  381 

were  to  be  set  out  continuously,  ami  the  sense  were  thereby  to  be 
altered,  the  variance  would  be  fatal  (c). 

With  respect  t<>  the  alteration  of  one  or  more  letters  of  a  word, 
the  rule  seems  to  be,  that  if  the  sense  be  thereby  altered  the  vaii- 
anc  •  will  be  fatal,  but  not  otherwise  ( >h. 

Wiih  respect  to  the  mis-spelling  ofa  word,  provided  the 
not  altere  I.  th  •  vari  inc  •  is  not  material,  even  in  an  indictment  for 
perjury.     In  the  caseof  the  King  v.  Birch  I  c  ),a  vari  mce  was  relied 
upon  in  favor  of  the  prisoner  between  the  indictment  for  perjury 
and  the  affidavit  on  which  th  i  prosecution  was  founded.     In 
affidavit,  the  defendant  swore  that  he  understood  and  believed,  •• 
The  assignment  of  perjury  in  the  indictment  was,  that  be  had  false- 
ly sworn  that  he  understood  and  believed,  &c.  omitting  the  Letters. 

"  Lord  Mansfield — "  This  is  an  application  for  anew  trial 
in  an  indictment  for  perjury,  upon  'the  ground  of  a  mate-  [  '382  1 
rial  variance  between  the  affidavit  and  the  indictment, 
th  j  letter  s  being  left  out  of  the  word  understood.  We  have  looked 
into  all  the  cases  on  the  subject,  some  of  which  go  to  a  great  length 
of  nicety  indeed,  particularly  the  case  in  Sutton,  where  the  word 
indicari  was  written  for  indictari,  but  that  case  is  shaken  by  the 
doctrine  laid  down  in  Hawkins  (/)• 

"  The  true  distinction  seems  to  be  taken  in  the  Queen  v.  Drake 
(g1),  which  is  this  ;  that  where  the  omission  or  addition  of  a  letter 
docs  not  change  the  word  so  as  to  make  it  another  word,  the  vari- 
ance is  not  material  (A). 

If  the  omission,  even  of  a  letter,  render  a  word  of  a  difleren: 
nification  from  that  contained  in  the  libel,  the  variance  seems  to  be 
fatal  (%). 

A-  when  the  word  not  was  slated  instead  of  nor;  for,  it  was  said, 
if,  in  such  a  case,  a  letter  could  be  amended,  why  not  a  word,  why 
not  a  sentence  ?  and  where  would  the'  iiou  ultra  be  found,  that  this 
was  not  so  small  a  variance  of  a  letter  as  in  false  Bpclling  or  abbre- 
viations, as  if  gaine  instead  of  gain,  where  the  word 
and  sense  would  be  the  same;  but  that,  in  the  'principal 

(c)    Tabari  v.  Tapper,  1  Camp.  850;  (/)  8  Balk.  224. 

and  see  Sidnam  v.  Mayo,  1  Roll.  EL  129.  («)   Leach,  C.  C.  L  168. 

Cro.  J.  -107,  and   quaere,  whether  if  the  (/ )  2  Hawk.  PL  t'.c.  46.  n.  190. 

passages  set  out  purported  to  be  continu-  (ij)  Silk 

ous  passage*,  when,  in  fact,  they  were  ex-  ('o   Bee  II  r                       I  th  C.  C.  I.    17l'. 

tractcd  from  various  parts  of  the  public:*-  Douglass    19 L     S:  irkic   on  evidence,  tit- 

tion,     the    variance    would    not   be    fatal.  Variance. 

Cooke  v.  Hughes,  1  Iiy.  and  M.  112.  (i)  3  Silk.  224. 


383  CIVIL  REMEDY— DECLARATION. 

case  the  words  were  different  and  of  different  significations ; 
different  parts  of  speech,  the  one  an  adverb,  the  other  a  con- 
junction ;  the  one  positive,  the  other  relative.  It  was  observed, 
too,  that  though  the  objection  was  in  appearance  trivial,  the  conse- 
quences were  weighty,  and  that  if  the  variance  were  not  considered 
as  fatal,  the  judges  would  have  too  great  power  in  cases  of  treason, 
where  the  decision  would  be  quoted  as  a  precedent  [1].   [a  a] 

Next  as  to  the  application  of  the  matter  published. — Where  the 
expressions  used  are  actionable,  either  in  themselves,  or  by  reason 
of  consequential  damage,  without  reference  to  any  extrinsic  circum- 
stances, it  is  sufficient  to  shew  merely  their  application  to  the 
plaintiff. 

This  is  effected  by  means  of  a  colloquium,  or  some  express  aver- 
ment, that  the  words  were  spoken  of  and  concerning  the  plaintiff, 
and  an  innuendo,  in  stating  the  words  themselves,  that  he  was  the 
person  meant  (A;). 

Formerly  it  was  the  practice  to  aver,  that  the  defendant  spoke  the 
words  in  a  certain  discourse  which  he  had  with  others,  or  with  the 
plaintiff  himself  in  the  presence  of  others,  concerning   the  plain- 
tiff.    This  was  technically  called  laying  a  colloquium, 
[  *384  ]     *and  till  the  case  of  Smith  v.    Ward  (/),  it  seems  to 

[a  a]  By  the  late  stat.    9  G.  IV.  ch.  15,  between  any  matter  in  writing  or  in  print 

it  is  enacted  that  it  shall  and  may  be  law-  produced  in     evidence,    and  the  recital  or 

ful  for  every  court  of  record  holding  plea  setting    forth    thereof   upon    the    record, 

in  civil  actions,  any  judge  sitting  at  nisi  whereon  the  trial  is  pending,  to  be  forth- 

prius,  and  any  court  of  oyer  and  terminer  with  amended  in  such  particular,  by  some 

and  gaol  delivery   in  England,  Wales,  the  officer  of  the   court,  on   payment  of  such 

town  of  Berwick  upon  Tweed,  and  Ireland,  costs  (if  any)  to  the  other  party,  as  such 

if  such  court  or  judge  shall  see  fit  so  to  do>  judge  or  court  shall  think  reasonable  [*]. 
to  cause   the    record  on   which   any  trial         (k)  The  nature  and  office  of  an  innuen- 

may  be  pending,  before  any  such  judge  or  do  will  afterwards    be   more    particularly 

court,  in  any   civil  action,  or   in   any   in-  considered. 

dictment  or  information    for   any   misde-         (I)  Cro.  Jac.  673.     8  Salk.  328.     Sir  T. 

meanor,  when  any  variance  shall  appear  Bay.  85. 

[1]  U.  Slates  for  United  States  held  an  immaterial  variance,  Lewis  v.  Few,  5  Johns, 
B.  1.  When  variances  have  been  held  material  or  otherwise,  see  Southiuick  v.  Stevens, 
11  Johns.  443;   Tillotson  v.  Chetham,  3  Id.  57  ;  Harris  v.  Lawrence,  1  Tyler  156. 

[*]  In  New-York  it  is  provided  by  statute,  that  every  variance  between  any  instru- 
ment in  writing,  and  the  recital  in  or  reference  to  in  any  pleading  or  writing,  shall  be 
disregarded  upon  the  trial  of  a  cause,  unless  the  variance  or  mistake  be  calculated  to 
surprise  and  mislead  the  opposite  party,  and  to  prevent  his  making  due  preparation  for 
a  full  answer  on  the  merits.  2  B.  S.  328,  §  99,  2d.  ed.  See  also  p.  313  and  344,  and 
Mappa  v.  Pease,  15  Wendell,  672.  Matters  in  print  as  well  as  in  writing,  no  doubt 
are  within  the  meaning  of  this  act. 


APPLICATION  OF  THE  WORDS.  384 

have  been  doubted  whether  a  declaration  without  a  colloquium 
would  be  good.  In  that  case,  it  was  alleged  that  the  defendant 
said  lit'  the  plaintiff,  "  He  (innuendo  the  plaintiff)  is  a  thief;"  and 
the  court,  on  being  informed  thai  it  was  the  common  course  to  de- 
clare that  he  said  de  prcefato  querente  fuec  verba,  held  it  to  be  suf- 
ficient without  a  colloquium. 

But  though  the  custom  was  to  lay  a  colloquium,  it  was  always 
held  to  be  necessary  to  aver  that  the  words  were  Bpoken  concerning 
the  plain  till'  [a  a\. 

Where  actionable  words  are  spoken  to  a  plaintiff,  it  is  sufficient  to 
lay  a  colloquium  with  him  without  an  express  averment  that  the 
words  were  spoken  de  querente  ;  for  it  cannot  but  be  intended  that 
the  words  were  spoken  to  him  with  whom  the  conversation  is  alleged 
to  have  been  had  (m). 

But  where  actionable  words  are  spoken  in  the  third  person,  as, 
"He  is  a  thief;"  though  a  colloquium  of  the  plaintiff  be  Laid,  it  is 
necessary  to  aver  that  the  words  were  spoken  concerning  the  plain- 
tiff (»). 

And  it  is  not   sufficient,  in  such  case,  to  connect  *the  185  ] 

words  with  the  plaintiff  by  means  of  an  innuendo  (o)  [1]. 

But  where  a  colloquium  is  laid,  and  there  is  an  innuendo  of  the 
plaintiff,  it  seems  that  the  want  of  a  direct  averment  must  he  pointed 
out  by  special  demurrer,  and  that  it  will  be  intended  after  verdict, 
or  upon  general  demurrer,"  that  the  words  were  spoken  of  the  plain- 
tiff; but  where  no  communication  is  laid  concerning  the  plaintiff, 
the  omission  of  such  an  averment  (/?)  is  fatal  to  the  declaration. 

Where  the  person  Blandered  is  pointed  out  by  the  prefatory  words 
thy  son,  thy  brother,  &c.  or  my  son.  my  brother,  which  description 
may  possibly  apply  to  several,  it  Beems,  from  the  current  of  decisions, 
that  the  plaintiff  must  aver  that  he  stood  in  the  described    relation, 

[u  <t]  Where  the  declaration  alleged  that  the  count  was  held  t>>  be  bad,  on  ■  writ  of 

the  defendant   did    print  and  publish,  of  error  brought     Clement  \.   Fisher,  ~  15. 

and  concerning   the  plaintiff,  a  libel,  oou-  &C.  159. 

taining  the  false  and    scandalous  muter        (m)  Roll.  Ab.  85.  pL  8.     1  Will.  Sun. 

folio  wing,  without  alleging  that  the  matter  242.  (a)  n.  8. 
was  of  and  concerning  the  plaintiff,  and        ('0  Roll  Ab.  85.  1.  80.     1  Bid. 

then  set  out   the  alleged  libel,  which,  on  Com   Dig.  tit.  Detain.     <!.  7. 
the  fice  of  it,  «1  i- 1  not  manifestly  appear  to        (o)  Cro.  J.  126. 
relate  to  the  plaintiff,  and  there  was  no  in-        (/<)  Roll.    K.   244.   Skull  \.    Bawkene, 

nuendo  to  connect   it  with    the   plaintiff,  1  Will.  Saun.  242.  a.  n.  8. 


[1]  See  to  same  clfect,  Sayre  v.  Jewett,  12  Wendell  185.     Sec  also  Lin  hlcy  v.  Smith, 
7  Johns.  II.  359  ;  Mettle  v.   Van  Slyck,  '2  Hill  282,  and  Titut  v.  Follett,  Id.  318. 
29* 


385  CIVIL  REMEDY— DECLARATION. 

and  that  he  was  the  son  or  the  brother  of  the  person  addressed  in 
the  former  case,  or  of  the  speaker  in  the  latter,  and  that  a  general 
allegation  that  the  words  were  spoken  of  and  concerning  the  plain- 
tiff is  insufficient  (#). 

Where  the  words  were,  "  Go,  tell  ray  landlord  (in- 
[  *385  ]  nuendo  the  plaintiff)  he  is  a  thief  (r).''  Judgment  *was 
given  against  the  plaintiff,  for  not  having 'averred  that 
he  was  the  landlord  of  the  defendant,  although  he  had  averred  that 
the  words  were  spoken  of  himself.  And  it  is  not  sufficient  to  bring 
the  plaintiff  within  the  description  by  means  of  an  innuendo  (.<;)• 

And  even  where  the  description  could  by  possibility  apply  to  one 
person  only,  it  has  been  held  that  an  averment  is  necessary,  to  shew 
that  it  was  applied  to  him. 

The  plaintiff  declared  that  the  defendant  having  a  discourse  con- 
cerning the  plaintiff  with  divers  other  persons,  said  these  words  of 
the  plaintiff,  "Your  father  (meaning  the  plaintiff)  hath  struck  and 
killed  Nicholas  Russel."  And  after  verdict  for  the  plaintiff,  judg- 
ment was  arrested,  because  it  was  not  averred  that  the  plaintiff  was 
father  to  him  "to  whom  the  words  were  spoken  (/)• 

In  Sha/merv.  Foster  (U),  the  declaration  stated,  that  "  the  wife 
of  the  defendant  spake  of  the  aforesaid  plaintiff  to  Ann  Rochester, 
the  plaintiff's  mother,  these  words,  "  Where  is  that  lying  thief,  thy 
sonne,  &c."  And  it  was  moved  in  arrest  of  judgment,  that  the 
words  were  uncertain,  no  precedent  communication  being 
[  *387  ]  alleged  to  be  of  'the  plaintiff,  nor  that  lie  was  the  only 
son  of  the  said  Ann  Rochester,  to  whom  th  words  were 
spoken,  and  that  it  might  be  that  she  had  divers  sons,  and  every  of 
them  might  have  an  action  as  well  as  the  plaintiff,  and  that  there 
was  an  ambiguity  who  was  meant  by  the  words.  And  Whiteleck 
and  Croke  were  ef  that  opinion  ;  and  the  latter  cited  the  cases  of 
Harver  and  Chamberlain  (x),  and  of  Burnet  and  Codraan  (#), 
where  for  such  words  it  was  adjudged  for  the  defendant.  But  Hyde, 
C.  J.  and  Jones,  J.  doubted  thereof,  because  it  was  alleged  that  she 
spoke  of  the  plaintiff,  and  was  found  guilty.  But  it  was  answered, 
that  so  wore  the  words  in  every  declaration,  and  that  so  it  was  in 
the  precedents  cited  (z): 

(?)  1  Roll.  84.  1.  15.  30.  60.  85.  1.  45.  530.    Golds.    187-     Cro.   Eliz.   416.  439- 

Cro.  Carr  443.  Jon.   376.     Cro.  Eliz.  416,  Cro.  Car.  92.  173.     Mo.  365. 
even  after  verdict.  («)  Cro.  Car.  177.     But  See  Cro.  J.  107. 

(r)  Cro.  Car.  420.  (*)  E.  T.  20  J.  1. 

(s)  Delamore  v.   Heskins,  Hill,  11  Car.         (y)  T.  T.  5.  J.  1. 
■K.  B.  1  Vin.  Abr.  528.  (*)  The  court  adjourned. 

(0  Hil.  1652.    Rot.  1037.     1  Vin.  Ab. 


COLLOQUIUM  OF  THE  PLAINTIFF.  37 

At  this  <lay,  after  bo  many  of  the  technical  niceties,  with  ■»• 

actions  of  this  description  were  formerly  encumbered,  have  ' Q 

defeated,  it  may  be  well  doubted  whether  much  attention  would  be 
paid  to  these  cases.     The  real  end  and  objecl  of  Buch  averments  is, 
to  shew  with  certainty  that  the  plaintiff  is  the  person  aimed  at  by 
the  defendant  :  and  though,  upon  the  face  of  the  words  themseb 
their  application   may  be  ambiguous,  as  where  the  defendanl  Bays, 
thy  Bon,  or  thy  brother,  yet  there  appears  no  want  of  cer- 
tainty npon  the  record,  when  it  is  alleged  that  'the  words    |    '388    | 
were  spoken  of  the  plaintiff  \  and  whether  they  were  so 
applied  or  not,  is  a  matter  of  evidence,  i  i  be  proved  by  Bhewing  that 
he  did  stand  in  the  relation  specified,  without  due  proof  of  which 
the  jury  could  not  possibly  find  the  truth  of  the  averment  that   tin- 
words  were  spoken  concerning  him. 

Considering,  however,  the  great  number  of  express  decisions  upon 
this  subject,  it  would  not  be  prudent  to  omit  a  Bpecial  averment. 
Thus  if  the  words  were,  ';  He  who  lives  at  No.  1,  Doubtful  Place, 
is  a  receiver  of  stolen  goods.*'  it  would  be  proper  that  the  plaintiff, 
being  the  person  meant,  should  allege  that  he  lived  at  No.  1,  Doubt- 
ful Place,  when  the  words  were  spoken,  and  not  only  to  aver  that 
the  words  were  spoken  of  him,  but  also  to  allege  specifically  that 
they  were  spoken  in  reference  to  the  house  in  which  he  so  lived. 

Where  the  description  may  apply  to  several  persons,  as  brothers 
or  sons,  it  is  unnecessary   for  the   plaintiff  to  aver,  that  he  was  the 
only  brother  or  only   son,  so  as  to  make  it  appear  that  the  descrip- 
tion applied  to  himself  exclusively.     This  objection,  however,  ap- 
pears to  have   frequently  been   taken:  and  in    Wiseman?.  Wise- 
man (a),  where  the  defendant  spoke  the  words  rf<  prcefato  quert 
existente  fratre  suo  naturali^on  motion  in  arrest  of  judg- 
ment, it  was  held  by  Yelverton,  *J.  that  the  words  were    [    '389   ] 
too  uncertain,  that  words,  to  be  actionable,  ought  to  im- 
port in  themselves  precise  -lander  without  ambiguity,  bo  tl 
one  who  heard  them  might  inten  1  of  whom  they  were  Bpoken  :  for 
otherwise,  if  it  could  he  helped  by  the  averment  of  the  plaintiff, 
every  one  who  was  his  brother  might  make  the  same  averment,  and 
have  an  action  which  would  not  be  reasonable.     But  it  was  after- 
wards adjudged,  by  all  the  judges,  for  the  plaintiff. 

A  distinction  was  taken  in  the  last  case  by  Tanficld,  J.  between 
words  importing  in  themselves  apparent  uncertainty,  and  tho8e  which 
might  be  ascertained  by  intendment.     That,  in   the   first  case,  no 

(a)  Cro.  J.  107. 


389  CIVIL  REMEDY— DECLARATION. 

averment  would  aid  the  uncertainty,  but  that,  in  the  latter,  it  might 
be  aided  by  an  averment  and  verdict;  and  therefore,  if  the  words 
had  been  "  one  of  my  brothers  is  perjured,"  there  would  be  in  them 
an  apparent  uncertainty;  and  that,  although  one  of  the  brothers 
should  bring  the  action,  and  aver  that  they  were  spoken  of  him, 
yet  that  because  it  appeared  to  the  court  that  there  were  divers 
brethren,  and  that  it  did  not  appear  to  any  of  whom  he  spake,  no 
action  would  lie,  although  the  defendant  should  be  found  guilty  by 
verdict. 

But  it  has  since  been  held  (^/),  that  for  disjunctive  words,  as  that 
A.  or  B.  committed  such  a  felony,  both  A.  and  B.  are 
[  *390  ]    entitled  to  recover,  *and  it  would  probably  now  be  de- 
cided upon  the  same  principle,  that  in  the  case  put  by 
the  learned  judge,  each  brother  would  be  allowed  to  maintain  his 
action  [1]. 

When  the  plaintiff's  name  is  mentioned,  though  a  further  descrip- 
tion be  given  (c),  the  general  averment  is  sufficient,  without  a 
special  allegation  that  such  further  description  applied  to  the  plain- 
tiff. As,  where  the  speaking  is  alleged  to  be  of  the  plaintiff,  and 
the  words  are  stated,  "  T.  (innuendo  the  plaintiff)  is  thy  brother, 
&c."  it  is  sufficient  without  any  other  averment. 

In  Nelson  v.  Smith  (d),  the  words  were,  "  Captain  Nelson  is  a 
rogue  and  a  thief,  and  hath  stolen  away  my  goods  ;"  and  it  was  held, 
that  the  declaration  was  good  without  any  averment  that  he  was  a 
captain,  or  known  by  that  name,  inasmuch  as  there  was  a  communi- 
cation of  the  plaintiff,  and  it  was  averred  that  the  words  were 
spoken  of  him. 

The  general  rule  is,  that  where  the  party  can  shew  that  he  was 
intended  by  the  defendant,  he  may  maintain  an  action,  whatever  be 
the  mode  of  description. 

Thus,  for  the  words,  "  The  parson  of  Dale  is  a  thief ;" 
[  *391  ]    it  was  held  that  he  who  was  parson  of  *Dalc  at  the  time 
the  words  were  spoken  might  maintain  an  action  (e). 

The  defendant  said,  u  That  murderous  knave  Stoughton  lay  in 

wait  to  murder  me;"  and  the  action  brought  by  Thomas  Stoughton 

was  held  to  be  maintainable  (/). 

(6)  Harrison  v.  Thornborovgh,  10  Mod.  Brookes,  1  Vin  Ab.  529.     1  Roll.  Ab.  85. 

1%.  (e)  3  Bulst.  320. 

(c)  Cro.  Eliz.  42rJ.  (/ )  Sheppard,  Action  of  Slander.  59. 

(</)  22  <J.  1.  B.  R.     See  also  Osborne  v. 

[1]  Same  doctrine  held   in  Gidney  v.  Blake,  11   Johns.  R.  54.     See  note  [1]  pag 
110,  ante 


EXTRINSIC  PACTS— WHEN  TO  BE  AVERRED.    391 

But,  in  the  next  place,  whenever  the  actionable  quality  of  the 
publication  arises  from  circumstances  extrinsic  of  the  word-  them- 
selves, averments  are  necessary  to  shew  thai  such  circumstances 
exist,  and  to  conned  the  words  with  those  circumstances. 

Thus,  if  the  words  were — "  He  was  concerned  in  the  late  affair 
at  B.'s  house,"  the  words  unexplained  would  nol  bear  any  actionable 
construction  ;  but  if  they  were  spoken  with  reference  to  a  burglary 
lately  committed,  or  Bupposed  lo  have  been  committed,  at  B.'s  hoi 
and  it  was  intended  to  impute  to  the  plaintiff  a  participation  in  the 
crime,  they  would  become  actionable.  Bui  in  order  to  shew  their 
actionable  quality  on  the  face  of  the  record,  it  would  be  essential 
to  allege  the  facts,  and  next  to  Bhew  that  the  words  wen-  spoken,  or 
libel  published,  in  reference  to  those  facts. 

The  technical  mode  of  effecting  this,  is,  first,  to  state, 
in  the  introductory  part  of  the  declaration,  'those  Bpecial    [    *392  ] 
circumstances,  in  reference  to  which  the  publication  is    . 
actionable. 

Secondly,  To  shew  generally,  by  means  of  proper  averments,  that 
the  words,  or  libel,  were  published  of  and  concerning  the  facts  and 
circumstances  so  previously  alleged. 

Thirdly,  To  connect  the  words,  or  libel,  set  out  with  such  previous 
facts  by  means  of  proper  innuendos. 

By  this  process  such  extrinsic  facts  are  incorporated,  as  it  were. 
with  the  defendant's  publication,  and  a  complete  slanderous  charge 
appears  on  the  face  of  the  record. 

In  what  cases  it  may  be  necessary  to  state  prefatory  circumstai 
to  be  afterwards  connected  with  the  publication  by  means  of  a  col- 
loquium and  innuendos,  is  of  course  a  matter  in  which  the  pleader 
must  exercise  his  discretion  in  the  particular  instance  before  him; 
the  only  general  rule  thai  can  be  laid  down  is,  that  such  circum- 
stances must  be  introduced  upon  the  record,  as  will  enable  the  court 
.to  decide  upon  the  actionable  quality  of  the  publication,  and  the 
jury  to  find  the  facts  which  are  connected  with  it  [a  a]  [_1]. 

[a  a]  Whore  the  declaration  averred  ih  e  and  had  audited  accounts  containing  items 

the  plaintiff  was  a  justice  of  the  peace,  and  to  a  large  amount,  nominally  (p  famish 

that  the  libel  was  published  of  him  as  Buch  lodgings  for  the  judges,  but,  in  reality,  Ibr 

justice,  ainl  the  alleged  libel  stated,  in  bud-  the  accommodation  of  the  magU 

stance,  that  the  plaintiff  had  been  chair-  the  Bheriff  had  always    provided  Buitable 

man  of  the  finance  committee  of  the  county,  lodgings  without  putting  the  o  onty  I  i  any 


[1]  Where  the  words  or  libel  do  not  necessarily  point  to  the  plaintiff,  as  the  individual 
slandered,  it  is  indispensable  to  the  maintenance  of  the  notion,  that  in  the  introductory 


392  CIVIL  REMEDY— DECLARATION. 

It  may  be  laid  dowa  as  a  general  rule,  that  where  the  slanderous 
charge  or  imputation  can  be  collected  from  the  words  themselves,  it 
is  vnnecessary  to  make  any  averment  as  to  circumstances, 
[  *393  ]  to  whose  supposed  existence  the  words  *refer.  For  the 
slander,  which  is  the  ground  of  proceeding,  appearing  on 
the  very  face  of  the  publication,  it  is  a  matter  of  indifference  as  to 
the  cause  of  action,  whether  the  circumstances  referred  to  really 
existed,  or  were  invented  by  the  defendant. 

Thus,  when  a  person  says  of  another  (§•),  "  That  is  the  man  who 
killed  my  husband,"  no  averment  of  the  husband's  death  is  necessa- 
ry, for  the  defendant's  words  have  ascertained  the  death. 

The  defendant  said  to  the  plaintiff  (/*),  "  Thou  hast  given  J.  S. 
e£9,  for  forswearing  himself  in  chancery,  and  hast    hired  him  to 

expense,  innuendo:  (thereby  meaning  that  v.  Foss,  vol.  2,  p.  305;  Stockleijx.  Clement 

the    plaintiff   had   conducted  himself  cor-  id. 

ruptly,  unduly,   and   improperly,    in    his  Where  the  libellous  meaning  is  apparent 

office  of  justice,)    it   was  held,   that   the  on  the  face  of  the  libel,  innuendos  are  un- 

libel  was  not  on  the  face  of  it  actionable,  necessary,  but   though    they  be  unnecessa- 

and  that  there  being  no  preparatory  aver-  rily    introduced    and    be  unsupported   by 

ment  to  which  the  innuendo,  by  referring,  prefatory   averments,  they   do   not  vitiate 

might  have  shown  it  to  bean  offence  in  him  the  declaration.     Archbishop  of  Tuam  v. 

to  have  so  audited  the  accounts,  the  defect  Robeson,  4  Bingh.  17. 

was  not  cured   by  verdict;  and  judgment  (g)   Button  v.  Hey  wood  and  his  wife,  8 

was   therefore  arrested.      Adams  v.  Men-  Mod.  24.     Vent.  117. 

dew,  2  Y.  and  J.  417.     See  also  Goldstein  *      (h)  Cro.  Car.  337. 

part  of  the  declaration,  extrinsic  facts  and  circumstances  be  averred,  so  that  when  they 
are  received  in  connection  with  the  words  or  libel  and  with  the  innuendos,  the  conclusion 
will  be  inevitable  that  the  plaintiff  is  the  person  slandered:  or  in  other  words  the  ex- 
trinsic facts  must  be  so  incorporated  into  the  declaration,  as  to  be  made  an  integral  part 
of  the  case,  and  the  whole  thus  form  one  entire  slanderous  charge  upon  the  face  of  the 
record,  Gibson  v.  Williams,  4  Wendell,  320;  and  Miller  v.  Maxwell,  lf>  Id.  91;  So 
where  from  the  ambiguity  of  the  terms  used  in  reference  to  the  offence  charged,  the 
words  have  a  covert  meaning,  to  render  the  declaration  good,  it  must  be  averred  that 
they  were  spoken  with  the  intent  to  charge  a  particalar  crime  ;  the  difficulty  cannot  be 
obviated  by  an  innuendo.  Andrews  v.  Woodmanse,  15  Wendell,  232.  An  averment 
thus  made  is  the  subject  of  proof ,  whilst  an  innuendo  is  not.  Witnesses  may  be  called  to 
detail  facts  and  circumstances  within  their  knowledge,  relied  upon  to  show  either  that 
a  crime  was  imputed,  or  that  it  affected  the  plaintiff;  but  it  seems  the  courts  in  New- 
York  hold  that  it  is  not  proper  to" allow  the  witnesses  to  state  their  conclusions  from  the 
facts,  as  to  the  intention  of  the  defendant  to  apply  the  words  or  libel  to  the  party  or 
circumstances  as  alleged,  Van  Vechten  v.  Hopkins,  5  Johns.  R.  211,  and  Gibson  v 
Williams,  4  Wendell,  320.  Mr.  Starkie,  in  his  treatise  on  the  Law  of  Evidence,  part  iv. 
page  861,  lays  down  the  rule  directly  the  reverse.  What  is  said  by  him  is  adverted  to 
and  condemned  by  the  learned  judge,  who  pronounced  the  opinion  of  the  court  in  Gib- 
son v.   Williams. 


EXTRINSIC  PACTS— WHEN  TO  BE  AVERRED.      393 

forgo  a  bond."  After  verdict  for  the  plaintiff,  it  was  moved,  iu 
arrest  of  judgment,  that  the  declaration  contained  do  allegation  that 
any  suit  was  in  chancery,  or  that  J.  S.  forswore  himself  in  his  an- 
swer,  or  as  a  witness,  or  thai  the  plaintiff  suborned  J.  8.  t<»  forswear 
himself,  or  shew  any  particular  wherein  he  forswore  himself.  But 
it  was  held  that  these  averments  were  immaterial ;  for  if  J.  8.  nev- 
er was  sworn,  it  was  scandalous  in  the  defendant  to  say  that  the 
plaintitV  procured  .1.  S.  to  forswear  himself  in  a  court  of  record, 
although  it  was  merely  false,  because  he  never  was  sworn.  And 
that  as  to  the  bond,  though  it  was  not  said  thai  J.  8.  had  forged  a 
bond,  the  charge  against  the  plaintiff  was  nevertheless  scandalous. 

*In  an  action  for  the3e  word-  |  i),  "  Thou  hast  killed 
thy  master's  cook,"  on  motion  in  arrest  of  judgment,  il    i    '394    ] 
was  held  to  be  unnecessary  to  make  any  averment,  shew- 
ing who  the  plaiutilV's  master  was,  or  that  he  was  the  master  of  the 
person  slain,  because  the  words  in  themselves  imputed  .-lander. 

In  Wilner  v.  Hold,  the  words  were,  "Thou  art  a  rogue  and  a 
rascal,  and  hast  killed  thy  wife."  On  motion  in  arrest  of  judgment, 
amongst  other  causes,  it  was  alleged  that  an  act  inn  lay  not  for  the 
words,  because  it  was  not  shewn  that  the  wife  was  dead,  or  how  she 
was  killed  ;  but  the  objections  were  overruled  (A:),  and  the  plaintiff 
had  judgment. 

In  declaring  for  the  words,  "I  will  call  him  in  question  for 
poisoning  my  aunt,"  there  needs  no  averment  that  the  aunt  was 
poisoned  (/). 

There  are,  notwithstanding,  many  cases  to  be  found  in  the  books 
where  averments  of  this  kind  have  been  deemed  to  be  indispensable j 
but  as  these  are  contradicted  by  the  more  modern  decisions  (m), 
and  are  rather  remarkable  for  their  subtlety  than  for  either  con- 
venience or  consistency,  it  would  be  a  wa8te  of  lime 
to  take  further 'notice  of  them  than  by  citing  a  few  speci- 
mens. 

After  verdict  for  the  words,  "Thou  art  as  arrant  a  thief  as  any 
in  England,"  (»)  it  was  held,  in  arrest  of  judgment,  that  the  \\ 
were  not  actionable,  for  want   of  an  averment  that   there    was  any 
thief  in  England. 

After  verdict  for  the  words,  "Thou  art  a  murtherer,  for  thou 
art  the  fellow  that  did  kill  Mr.  Sydnam's  man,"  judgment  was  re- 

(i)   Cooper  v.  Smith,  Cro.  J.  423.  («)   Pcake  v.  Oldham,  Cowp.  276. 

(fr)   See  1  Vin.  Ab.   513,  pi.  1.  2.  (n)  Foster  v.  Browning.  Cro.  J.  687. 

(/)  Cro.  Eliz.  669,  823. 


395  CIVIL  REMEDY— DECLARATION. 

versed  for  want  of  an  averment  that  any  of  Mr.  Syd nam's  men  had 
been  slain  (o). 

The  words  were,  "  Whosoever  he  is,  that  is  the  falsest  thief  and 
the  strongest  in  the  county  of  Salop,  whatsoever  he  hath  stolen,  or 
whatsoever  he  hath  clone  (/?),  Thomas  Haselwood  is  falser  than  he," 
it  was  held  necessary  to  aver  that  there  were  felons  in  the  county 
of  Salop.  But  this  resolution  is  to  be  attributed  to  the  anxiety  of 
the  courts  to  discourage  such  actions  ;  it  seems  pretty  clear 'that  at 
the  present  day,  no  such  averment  would  be  deemed  necessary. 

It  would  be  sufficient  to  aver,  that  the  defendant,  intending  to 
charge   the  plaintiff  with  felony,  spoke  the  words ;  and 

*896  ]    in  setting  them  out,  to  add  *an  innuendo  to  the  same  ef- 
fect, in  which  case  a  verdict  for  the  plaintiff  would  be 
conclusive  as  to  the  defendant's  meaning  and  intention. 

The  introduction  of  useless  averments  is  in  all  cases  objectionable, 
inasmuch  as  it  encumbers  the  plaintiff's  case  upon  the  trial  with  un- 
necessary proof,  and  in  some  instances  the  superfluity  may  prove 
fatal  to  the  declaration. 

In  the  case  of  Snag  v  Gee  (#),  where  it  appeared  upon  the  re- 
cord that  the  person  with  whose  murder  the  plaintiff  had  been 
charged  by  the  defendant,  was  still  alive,  it  was  held  that  no  action 
was  maintainable. 

And  where  the  words  of  the  defendant  are  general,  no  explanation 
is  necessary  to  render  them  more  particular. 

The  defendant  (r)  charged  the  plaintiff  with  having  forsworn 
himself  in  his  answer  to  a  bill  in  chancery.  After  verdict  for  the 
plaintiff,  it  was  moved,  in  arrest  of  judgment,  that  the  particulars  of 
the  perjury  imputed  were  not  pointed  out  in  the  declaration,  and 
that  many  indictments  for  perjury  had  been  quashed,  for  not  show- 
ing the  perjury  to  have  been  in  a  material  point.  But  the  court 
held,  that  though  indictments  ought  to  show  the  cause  of 
[  *397  ]  perjury,  yet  that  in  an  action  *for  words  which  is  ground- 
ed on  the  speech  of  another,  the  charge  cannot  be  en- 
larged further  than  the  other  spoke. 

So,  in  cases  where  a  felony  is  charged,  it  is  unnecessary  to  make 
any  averment,  introducing  any  circumstances  relating  to  a  felony 
actually  committed  ;  so,  with  respect  to  imputations  of  forgery  or 

(o)  Batons  v.  Ball,  Cro.  J.  331.     See  a         (7)  4  Rep.  16.  1  Vin.  Ab.  409,  pi.  4. 
conjecture  upon  the  original  reason  of  this         (r)  Sir  R.  Snowe  v. ,  Cro.   Car- 
scrupulous  nicety,  p.  81.  321. 

(p)  Shepp.  Ac.  269. 


EXTRINSIC  FACTS— WIIK \  TO  BE  AVERRED.     397 

perjury,  where  the  meaning  can  be  collected  from  the  defendant's 
own  words,  no  averment  ought  to  be  m  ide  M  to  the  existence  of  any 
circumstance  to  which  the  defendant  might  by  possibility  allude, 

since  it  has  been  long  settled  that  their  existence  lb  perfectly  imma- 
terial to  the  maintenance  of  the  action  l  s  ). 

But  in  case  of  a  charge  of  forswearing  unless  from  the  accom- 
panying  words,  it  be  clear  that  a  judicial  forswearing  was  meant,  the 
plaintiff  must  show  upon  the  record  thai  fondant  alluded   ho 

some  particular  forswearing  which  amounted  to  perjury.  Tim-,  in 
a  declaration  for  saying,  (/)"  A.  B.  being  forsworn,  compounded 
the  prosecution,"  no  introduction  of  extrinsic  facts  is  necessary, 
since  an  indictable  forswearing  must  have  been  meant;  but  in  de- 
claring for  the  words  (w),  "  He  has  tor-worn  himself  in  Leake 
Court,"  it  is  necessary  to  show  that  Leake  Court  was  one 
'in  which  the  offence  of  perjury  could  have  been  commit-  [  893*  ] 
ted. 

In  the  King  v.  Home  (.?;),  the  libel,  as  stated  in  the  information, 
was  averred  to  be  of  and  concerning  his  said  majesty's  government, 
and  the  employment  of  his  troops.  The  libel,  as  set  forth  in  the 
information,  advertised  a  subscription  for  "  the  relief  of  the  widows. 
orphans,  and  aged  parents  of  our  beloved  American  fellow  subjects, 
who,  faithful  to  the  character  of  Englishmen,  and  preferring  death 
to  slavery,  were,  for  that  reason  only,  inhumanly  murdered  by  the 
King's  (meaning  his  said  majesty's)  troops  at  or  near  Lexington 
and  Concord,  &c.  in  the  province  of  Massachusetts."  The  defend- 
ant having  been  found  guilty,  objected,  in  arrest  of  judgment,  that 
there  was  no  averment  as  to  the  state  of  the  Massachusetts  colony 
at  that  time,  or  that  the  king  had  sent  any  troops  there,  or  that  the 
employment  of  the  troops  was  by  the  king's  authority. 

Lord  C.  J.  De  Grey,  La  giving  judgment,  observed,  "  The  words 
in  the  present  case  are,  that  the  defendant,  of  and  concerning  the 
king's  government  and  the  employment  of  his  troops,  said,  •  that 
innocent  subjects  had  been  inhumanly  murdered  by  the  king's  troops 
for  preferring  death  to  slavery.'  Do  these  words  import, 
in  'their  natural  and  obvious  sense,  that  the  king's  tro  ■•'■'.,'.'   ] 

were  employed  by  the  act  of  government  inhumanly  to 
murder  the  king's  innocent  subjects  ?     There  can  be  no  doubt  but 
that  the  king's  government  comprehends  all  the  executive  power, 

(s)  Vid.  Supra.  85.  (M  Cro.  Eliz  009, 

(tt)  1  Roll.   Ab.  39,  pi.   7.    GBac.Ab.        (*)  Cowp.  682. 
207. 

Vol.  I.  30 


399  CIVIL  REMEDY— DECLARATION. 

both  civil  and  military,  that  he  employs  all  the  national  force,  and 
that  his  troops  arc  the  instruments  with  which  part  of  the  executive 
government  is  to  be  carried  on.  The  introductory  part  of  this  in- 
formation charges  that  the  subject  of  the  writing  in  the  present  case 
was,  "  the  troops  and  the  king's  troops,  and  the  business  they  had 
done." 

"  It  has  been  truly  said,  that  the  king's  troops  may,  like  other 
men,  act  as  individuals,  but  they  can  be  employed  as  troops  by  the 
act  of  government  only.  If  the  averment,  therefore,  amount  to 
this,  that  in  the  discourse  which  was  held,  the  words  were  said,  '  of 
and  concerning  the  king's  government,'  the  natural  import  appears 
to  us  to  be  this  :  '  I  am  speaking  of  the  King's  administration,  of  his 
government  relative  to  his  troops,  and  I  say,  that  our  fellow  subjects 
faithful  to  the  character  of  Englishmen,  and  preferring  death  to 
slavery,  were  for  that  reason  only  inhumanly  murdered  by  the  king's 
order,  or  the  orders  of  his  officers.'  The  motive  imputed  tends  to 
aggravate  the  inhumanity  of  the  act,  and  consequently  of 
[  *400  ]  the  imputation  itself,  because  it  *arraigns  the  government 
of  public  trust,  in  employing  the  means  of  the  defence  of 
the -subject,  in  the  destruction  of  the  lives  of  those  who  are  faithful 
and  innocent. 

"  As  to  any  other  circumstances  not  stated  in  the  information,  if 
those  which  are  stated  do  of  themselves  constitute  an  offence  ;  the 
rest  supposed  by  the  defendant,  whether  true  or  false,  would  have 
been  only  matter  of  aggravation,  and  not  any  ingredient  essential  to 
the  constitution  of  the  crime,  and  therefore  not  necessary  to  be 
averred  on  the  record." 

With  respect  to  the  allegation  of  collateral  circumstances,  in 
reference  to  which  the  publication  is  actionable,  care  should  be  taken 
not  to  allege  them  too  minutely,  and  not  to  allege  more  than  is 
necessary,  for  where  the  actionable  quality  of  the  publication  de- 
pends wholly  on  its  connection  with  collateral  matter,  a  variance  in 
proof  of  those  matters  has  frequently  been  held  to  be  fatal. 

Where  the  words  are  actionable  in  reference  to  the  special  char- 
acter of  the  plaintiff,  as  a  physician,  barrister,  clergyman,  or  trades- 
man, a  prefatory  averment  of  such  his  character  and  situation  is  of 
course  in  all  cases  essential. 

In  the  description  of  the  special  character  in  which  the  plaintiff 

sues,  some  nicety  is  to  be  observed,  in  not   averring 

[  *401  ]  more  than  is  necessary ;     *for,  since  the    averment  of 

character  is  material,  the  plaintiff  upon  the  trial  will  be 


EXTRINSIC  PACTS— SPECIAL  CHARACTER.       401 

bound  to  prove  it,  with  all  the  circumstance*  with  which  the  de- 
scription in  the  declaration  is  encumbered,  though  a  much  more 
simple  one  might  have  Bufficed. 

In  an  action  for  words,  the  plaintiff  ( //)  declared  that  he  w 
nedicinis  doctor;  and  it  was  moved  in  arresl  of  judgment,  because 
he  did  not  shew  that  he  was  licensed  by  the  College  of  Physicians, 
or  that  he  wasagraduate  of  one  of  the  univen  scordingto 

the  Btatute  (  z).  Bnt  Bankes,C.  J.  and  Crawley,  J.  were  of  opinion 
that  the  act  was  a  general  one,  which  need  not  be  pleaded. 

And  even  had  the  Btatute  been  a  private  one,  it  Beoms  that  the 
plaintiff  in  such  an  action  would  not  be  bound  to  set  out  his  title, 
since,  in  general,  an  action  on  the  case  against  a  wrong  doer  for  a 
disturbance,  it  ia  sufficient  for  the  plaintiff  to  allege  his  right  gene- 
rally, without  showing  a  title  (a). 

And   in  an  action    brought   by  a   physician,  it   is  suffi- 
cient to  aver  (b)  that  he  had  used  and  exercised 'the     [  *402  ] 
profession  of  a  physician  ;  but  if  he  were  to  aver  that 
he  was  a  physician,  and  had   duly  taken  the   degree  of  doctor  of 
physic,  he  would  at  all  events  be  required  to  prove  his  degree  as 
stated  (c)  ;  and  if  he  were  unable  to  prove  it,  he  would  fail. 

But  though  the  plaintiff  need  not  aver  how  lie  came  by  his  title, 
he  must  describe  it  in  apt  terms.  Thus,  in  an  action  broughl  by  a 
barrister,  he  ought  to  aver  that  he  is  homo  consiliarius;  and  it  is 
not  sufficient  to  say  that  he  is  eruditus  in  lege  Qd). 

It  was  formerly  held,  that  it  was  necessary  for  a  tradesman  (e) 
to  aver  in  an  action  for  words  of  his  occupation  or  trade,  that  he 
got  his  living  by  buying  and  selling:  but  this  anise  from  the  idea. 
that  the  words,  to  be  actionable,  must  import  bankruptcy,  and  must 
be  applied  to  a  person  who  was  Liable  to  the  statutes  of  bankruptcy, 
which  has  long  been  exploded  ( /  »  :  it  is  sufficient  to  aver  that  the 
plaintiff  exercised  the  trade,  and  derived  profit  from  it. 
•  Next  it  should  appear  that  the  special  character  "be-  [  '408  ] 
longed  to  the  plaintiff  at  the  time  of  the  publication. 
So  little  precision  has  been  required  as  to  this  statement,  that  it  lias 
been  held  that  the  averment  by  the  plaintiff,  that  he  is  of  such  a 
trade,  or  has  exercised  it  for  divers  years  <  g  ).  without  Baying  ultimo 

(y)  Dr.  Brownlow's  case,  Mar.  116. pi  (</)  1  Tin.  Ab.                              rding 

3.     1  Yin.  Ab.  539.  to  Coke,   C.  J.  the   helmi 

(z)  14  U.  8,  c.  5.  homo  contiliariui  tt  injur*  perilut, 

(a)  2  Vent.  292.   Cro.  J.  43,  123.  Com.  (<•)  Bid.  299.     1  Vin.  Ab. 

Dig.  Pleader,  c.  39.  ( /')  Vide  supra,  184,  186. 

(6)  8  T.  R.  305.  (g)    Tuthill  v.  Milton,  Yel.  159.     This 

(c)  8  T.  R.  303.  I  N.  R.  19G.  2  Buls.  230.  was  after  verdict. 


403  CIVIL  REMEDY— DECLARATION. 

etjam  elapsos,  or  that  he  is  a  freeman  exercising  the  art  or  mystery 
of  a  linen-draper  for  the  space  of  five  years  past,  or  that  he  has 
been  an  attorney  (A)  for  divers  years  now  elapsed,  was  sufficient, 
without  an  express  averment  that  he  was  such  at  the  time  the  words 
were  spoken,  since  it  is  not  to  be  presumed  that  a  man  alters  his 
trade  or  profession. 

In  the  case -of  Do'dd  v.  Robinson  (i),  the  plaintiff  declared  that 
he  was  inducted  into  a  parsonage  in  Ireland,  and  executed  the  office 
of  pastor  for  four  years  after.  It  was  moved  in  arrest  of  judgment 
that  he  did  not  aver  that  he  was  a  parson  at  the  time  of  speaking 
the  words. 

But  the  court  said,  it  should  be  intended  that  he  continued  par- 
son because  he  had  a  freehold  in  the  parsonage  during  his  life. 

In  the  case  of  Tuthill  v.  Milton  (&),  the  court  said,  that  an  ac- 
tion for  words  which  affect  the  plaintiff  in  his  office  which 
[  *404  ]  he  holds  during  pleasure,  *it  must  be  expressly  averred 
that  lie  was  in  the  office  at  the  time  the  words  were  pub- 
lished ;  but  that  if  the  words  relate  to  his  profession  or  trade,  it  is 
sufficient  to  aver  that  he  has  for  some  years  past  exercised  the  pro- 
fession or  trade,  for  that  it  shall  not  be  intended  that  he  has  dis- 
continued such  profession  or  trade. 

But  in  the  subsequent  case  of  Collis  v.  Matin  (/)>  where  the 
plaintiff  declared  that  he  had,  for  a  great  while,  used  the  trade  of 
buying  and  selling  cattle,  and  that  the  defendant  said  of  him,  "  Thou 
art  a  bankrupt,"  after  verdict  for  the  plaintiff,  judgment  was  arrest- 
ed. 

After  verdict,  indeed,  if  the  continuance  can  be  collected  from 
any  averment  or  circumstances,  the  want  of  a  precise  and  technical 
allegation  will  be  cured. 

As,  where  the  plaintiff,  after  alleging  that  he  ivas  a  justice  (m) 
of  the  peace  for  the  county  of  Leicester,  for  divers  years,  averred 
that  the  defendant  spake  these  words  of  him,  being-  a  justice  of  the 
peace. 

So  the  continuance  may  be  collected  from  the  words  themselves ; 
as  if  the  defendant  say  of  an   attorney,  that  "  he  plays  with  both 

hands  (n)" 
[  *405  ]         *It  seems,  in  general,  to  be  sufficient  to  allege  gcneral- 

(h)  2  Roll.  R.  84.    1  Vin.  Ab.  588.  (I)  Cro.  Car.  282.     See  also  2  Roll.  84. 

(i)  All.  63.  64.     1  Vin.  Ab.  538,  note  to  Dan.  170. 

pi.  3.  (mi)  Beaumond  v.  Hastings,  Cro.  J.  240. 

(k)  Cro.  Jac.  222.    Yelverton,  159.  (h)  2  Roll.  85. 


EXTRINSIC  PACTS— AVERMENT  OF.  405 

ly  that  the  plaintiff  was  a  physician,  barrister,  or  attorney,  at  the 
time  of  the  alleged  injury,  without  more. 

1 1  is  ann  ic  issary  to  aver  that  the  plaintiff  has  qualified  himself  to 
act  in  the  situation  or  office,  in  respect  of  which  he  is  Blandered, 

according  to  the  enactments  of  any  Btatute  (o  ). 

Where  the  words  or  libel  derive  their  injurioua  quality  from  ex- 
trinsic circumstances,  which  are  averred  upon  the  record,  it  is  ob- 
vious that  the  allegations  by  which  the  words  or  libel  are  applied  to 
such  extrinsic  subject  matter,  become  descriptive  of  the  nature  of 
the  injury. 

And,  consequently,  that  a  material  variance  in  proof  from  such 
averments  must  be  fatal. 

Where  the  plaintiff  stated  that  he  was  the  proprietor  and  editor 
of  a  newspaper  calumniated  by  the  defendant,  it  was  held  to  be  in- 
sufficient to  prove  merely  that  he  was  the  proprietor  (/?). 

Where  the  declaration  stated  that  the  plaintiff  was  an  attorney 
of  the  Court  of  King's  Bench,  and  had  been  employed  by  the  de- 
fendant, as  his  attorney,  to  defend  an    action,  wherein 
one  *G.  "W.  L.  had  been  the  plaintiff  and  the  present  de-    [  *400  ] 
fendant  had  been  the  defendant,  and  the  words,  "  I  have 
got  rid  of  a  rogue  in  Willey,  and  I  have  got  rid  of  a  bigger  rogue 
in  Parry"  (the  plaintiff),  were  alleged  to  have  been   spoken  of 
the  plaintiff's  conduct  in  that  cause  ;  it  was  held,  that  as  the  words 
were  laid  as  spoken  of  the  plaintiff,  in  the  conduct  of  a  certain  ac- 
tion, that  action  was  the  ground  work  of  the  inquiry,  and  that  its 
existence  ought  to  be  proved  (q). 

In  an  action  (/•)  for  a  libel  on  a  constable,  alleged  in  both  counts 
of  the  declaration  to  have  been  published  of  and  concerning  his  con- 
duct in  the  apprehension  of  persons  stealing  a  dead  body,  it  was 
averred,  in  what  that  conduct  had  consisted,  viz.  that  he  had  carried 
that  body  to  Surgeon's  Hall;  and  it  was  held  to  be  necessary  to 

(o)  Sec  TTaillcy  v.   Herring,  8  T.  R.  And  it  ma  held,  that  i;                  ifficient 

13j_  to  show  that  the  coats  had  bean  levied  and 

(p)  Herriot  v.  Stuart,  4  Esp.  C.  487.  paid,  and  that  all  t lio  papers   had  been 

Ld.  Kenyon,  C.J.    See  also   Steveni  v.  given  up  to  the  defendant,  and  that  notice 

AUridge,  6  Price,  '_';>  I      R.  v.  siunr,  l  had  been  given  to  the  defendant  to  prodoea 

Leach,  C.  C.  L.  79.    2  East's  P.  C.  580.  all  papers,  Ac.  Lord  Kenyon  said,  that  he 

R.  v.  Ellis,  Russell  and  Ryan,  188.  Sell-  presumed  that  the  roll  bad  been  carried  in. 

ers  v.  Till,  4   B.   and  C.    G55.     But  see  to  which  the  plaintiff  might  have  had  ac- 

Lewisv.  Walter,  3  B.  and  C.  108.  Supra,  oeea,  and  given  ■  oopy  in  «vi  I 

398.  (r)    Tccsdalc  v.  Clement,  1  Chitt; 

(</)   Parry   v.    Collin,  5   Esp.  C.  339. 
30* 


406  CIVIL  REMEDY— DECLARATION. 

prove  the  introductory  allegation,  inasmuch  as  it  was  material  to  the 
defamatory  character  of  the  libel  itself  (s). 

But,  on    the    other    hand,    the    omission    to    prove 
[  *407  '     *facts  unnecessarily  alleged,  will  not  be  fatal,  unless  by 
the  form  and  mode  of  pleading  they  have  been  made 
descriptive  of  that  which  is  material. 

An  information  alleged  that  the  king  had  issued  a  particular 
proclamation,  and  also  averred,  that  on  occasion  of  that  proclama- 
tion, divers  addresses  had  been  presented  to  his  Majesty  by  divers 
of  his  subjects ;  the  information  charged  the  defendant  with  a  pub- 
lication with  the  intent  to  bring  the  said  proclamation  into  contempt, 
but  did  not  refer  to  the  addresses  ;  and  it  was  held  to  be  necessary 
to  prove  the  fact,  that  such  a  proclamation  had  been  issued  (7)  ; 
but  it  seems  that  it  was  unnecessary  to  prove  that  any  addresses 
had  been  presented  (m). 

In, an  action  on  the  case  for  exhibiting  an  inscription  tending  to 
defame  the  plaintiff  as  the  keeper  of  a  brothel,,  the  declaration  con- 
tained a  prefatory  allegation,  that  the  plaintiff  carried  on  business 
as  a  retailer  of  wines,  but  it  was  held  that  proof  of  the  fact  was 
unnecessary,  there  being  no  colloquium  of  the  trade  (x). 

And  although  the  words  or  libel  be  alleged  to  have  been  spoken 
and  published  of  and  concerning  subject  matters  pre- 
[  *408  ]  viously  alleged,  yet  a  variance  in  the  omission  to  *prove 
the  whole  of  such  previous  allegations,  will  not  be  ma- 
terial, provided  these  allegations  be  of  a  divisible  nature,  and  those 
which  are  not  proved  be  not  material  to  the  defamatory  character 
of  the  libel  itself.  For  the  allegation  is  not  descriptive  of  the 
words  or  libel,  but  of  the  nature  of  the  injury ;  and  if  the  several 
matters  in  reference  to  which  the  libel  is  alleged  to  have  been  pub- 
lished, be  cumulative  and  divisible,  so  also  the  application  of  the 
libel  to  such  subject  matters,  and  the  injury  arising  from  that  appli- 
cation may  be  considered  to  be  divisible. 

The  declaration  alleged  the  publication  of  a  libel,  of  and  con- 
cerning the  plaintiff,  and  also  of  and  concerning  the  plaintiff  in 
his  business  or  profession  of  an  attorney,  and  the  plaintiff  having 
failed  in  proving  that  he  had  either  taken  out  his  certificate,  or  prac- 
tised in  the  year  in  which  the  libel  was  published,  he  was  in  con- 
sequence nonsuited ;  but  it  was  afterwards  decided,  by  the  Court 

(s)  See  the  observations  of  Abbott,  C.  J.         (u)  Per  Buller,  J.  ib. 
upon  this  case,  3  B.  and  C.  124.  (x)   Spull  v.  Massey,  2  Starkie  C.  559. 

(i)  R.  v.  Holt,  5  T.  R.  436. 


EXTRINSIC   FACTS— DECLARATION. 


408 


of  King's   Bench,  that  the  allegation  was  not    descriptive  of  the 
libel,  and  consequently,  that  there  was  no  material  va- 
riance (//).    So,  where  the  declaration  alleged  that  *thc 
plaintiff  was  vestry  clerk  of  the  parish  of  M — -b;  that, 
whilst  he  wa  clerk,  certain  prosecutions  were  carried  on 

against  1>.  of  certain  misdemeanors,  and  that  in  furtherance  of  Buch 
proceedings,  and  to  bring  the  sunt.-  to  b  .  certain 

sums  of  money,  belonging  to  the  parishioners  were  applied  in  dis- 
charge of  the  expenses  ;  and  that  the  defendant,  to  cause  it  t  i 
lected  that  the  plaintiff  had  fraudulently  applied  money  beli 
ing  to  the  parishioners,  falsely  and  maliciously  publish  hJ  of  and  con- 
cerning the  plaintiff,  and  of  and  concerning  his  conduct  in  his  office 
of  vestry  clerk,  and  of  and  concerning  the  matters  aforesaid,  a  cer- 
tain libel,  &c.     It  appeared  upon  the  trial,  upon  the  production  of 
the  libel,  that  the  imputation  was,  that  the  plaintiff  had  applied 
the  parish  money  in  payment  of  the  expenses  of  the    prosecution 
after  it  had  terminated.     And  it  was  held,  that  the  variance  was 
unimportant  ;  for  it  was  immaterial  to  the  character  of 
*the  libel,  whether  the  money  were  so  applied  before  or    |    '410  ] 
after  the  termination  of  the  prosecution  (c). 


(yi)  Lewis  v.  Walter,  3  B.  and  C  13S. 
But  where  the  plaintiff  alleged  that  he  was 
treasurer  and  collector  of  certain  tolls,  and 
that  the  defendant  published  of  him,  as 
such  treasurer  and  collector,  "  You  are 
gathering  the  toll  for  your  own  pocket," 
thereby  then  and  there  meaning  that  the 
plaintitF,  so  being  such  treasure  and  collect- 
or, was  guilty  of  collecting  tolls  for  the 
purpose  of  improperly  applying  them  to 
his  own  use;  the  plaintiff  having  proved 
that  he  was  treasurer  only,  and  not  col- 
lector, the  variance   was   considered   fatal, 

nd  the  court  of  K.  B.  refused  to  set  aside 
a  nonsuit.  For  the  words  were  applicable 
to  the  plaintiff  rather  in  his  oharaoter  of 
collector,  than  of  treasurer;  the  plaintiff 
was  bound  to  prove  that  the  words  were 
applicable  to  him,  in  the  manner  which  he 
himself  had  pointed  out  by  his  innuendo. 
Sellers  v.  Till,  8  B.  and  C.  655. 

(z)  May  v.  Brown,  3  B.  and  C.  113.  In 
the  case  of  Lord  Churchill  v.  Hunt,  '2  15. 
and  A.  685,  the  declaration  alleged  that, 
before  the  publication  of  the  libel,  a  carri- 


age in  which  E.  S.  was  riding,  was  passing 
on  a  certain  highway,  and  that  the  plaintiff 
was  also  driving  another  carriage,  and 
that  it  happened  without  any  negligence, 
default,  or  furious  driving  un  the  p  irt  of 
the  plaintiff,  that  the  two  carriages  came 
in  contact  together,  whereby  the 
in  which  the  sail  E.  B.  was  riding,  i 
oidentally  overturned,  and  the  -ii  1  1".  8. 
was  injured,  and  that  the  defendant  pub- 
lished a  libel  of  and  concerning  the  plain- 
tiff, and  of  and  concerning  the  said  acci- 
dent The  jury  found,  on  an  issue  taken 
on  a  special  justification  to  part  of  the  al- 
leged libels,  that  the  accident  had  been  oc- 
I  bj  the  hard  and  furious  driving 

of  the  plaintiff,  and    found   a   verdict  with 

■  part  of  the 
irhi  ih   «  tfl   not   justifl  i 

motion  to  enter  a  verdict  for  tl 
on  all  ;  I  wai  oonten  led  th  it  the 

allegation  that  it  happened  without  furi- 
ous driving  on  the  part  of  the  plain- 
till",  was  part  of  the  description  of  the 
accident.  But  the  court  held  that  the  aver- 


410  CIVIL  REMEDY— DECLARATION. 

The  plaintiff  declared  that  he  had  been  a  wool-stapler  at  Ciren- 
cester and  that  at  the  time  when  the  words  were  spoken  he  was  a 
brewer  at  Oxford,  and  that  the  defendant  spoke  of  him,  as  such 
trader,  these  words,  "  Mr.  H.  the  plaintiff)  and  B.  have  both  been 
bankrupts  ;  Mr.  H.  at  Cirencester;"  the  plaintiff  proved 
[  *411  ]  that  he  was,  when  *the  words  were  spoken,  a  brewer  at 
Oxford  ;  but  gave  no  evidence  of  his  having  been  a  wool- 
stapler,  and  proved  also  that  the  defendant  spoke  the  words,  "  He 
was  a  bankrupt  at  Cirencester,"  and  it  was  held  that  the  evidence 
supported  the  allegations,  for  a  trader  at  Oxford  might  have  been  a 
bankrupt  at  Cirencester  (a). 

With  respect  to  words  published  in  a  foreign  language,  and 
phrases  or  terms  whose  use  is  confined  to  a  particular  district  or 
class  of  people,  and  not  generally  understood,  it  has,  as  already 
observed,. been  said,  that  no  averment  as  to  their  meaning  is  neces- 
sary (6).  This  doctrine  seems  nevertheless  a  little  extraordinary, 
since,  without  such  an  explanation,  the  question  of  law  does  not  ap- 
pear open  upon  the  record  (c).  Suppose  for  instance,  an  action  to 
be  brought  for  calling  the  plaintiff  Idoner  (d),  without  any  aver- 
ment.of  the  meaning  of  the  term,  and  that  the  defendant  demurred ; 
since  an  acquaintance  with  the  Welch  tongue  forms  no  part  of  legal 
education  or  practice,  the  judges  would  be  placed  in  a  strange 
situation  if  they  were  bound  to  give  their  judgment  upon 
[  *412  ]  the  legal  meaning  of  the  words  ;  but  an  averment,  as  *to 
the  meaning,  would  preclude  all  doubt,  since,  by  his  de- 
murrer, the  defendant  would  allow  that  the  meaning  of  the  word 
was  perjured  or  forsworn,  as  alleged  in  the  declaration,  and  judg- 
ment would  be  given  accordingly. 

If  the  plaintiff  undertake  to  translate,  and  render  a  foreign  word 
of  an  actionable  sense,  by  an  English  one  whose  meaning  is  not 
actionable,  the  declaration  will  be  defective. 

In  the  case  of  Ross  v.  Laivrence,  the  plaintiff  averred  that  the 
Welch  words  Ded  ingaes  Will.  Ross  in  mudon,  signified  that  the 
plaintiff  was  forsworn,  though  in  fact  they  signified  that  lie  was 
perjured;  and,  after  a  verdict  for  the  plaintiff,  judgment  was  ar- 
rested (e). 

ments  were  divisible,  and  that  the  allega-         (c)  Hob.  126.     1  Roll.  Ab.  86.  Zenobio 

tion  was  no  part  of  the  description  of  the  v.  Axtel,  6  T.  R.  162. 

accident.  (d)  In  Welch  signifying  perjured. 

(a)  Hall  v.  Smith,  1  M.  and  S.  287.  («)  Sty.  263.     Ross  v.  Lawrence. 

(b)  See  1  Will.  Saund.  n.  242. 


EXTRINSIC  FACTS— COLLOQUIUM.  412 

In  an  action  for  Blander  of  the  plaintiff's  dtle,  it  is  wfficient  to 

aver  his  right  generally,  without  Betting  forth  bis  title.     Tim-  it  I 
been  held  to  be  sufficient  to  aver  that  the  plaintiff  was  lawfully  nes- 
ted of  certain  copper  mines,  Bituate,  &o.  and  of  certain  ore  got- 
ten and  to  be  gotten  from  the  Baid  min      ■         f  )■ 

In  the  next  place  it  is  necessary  to  connect  the  publication  with 
the  previous  farts,  by  means  of  an  appropriate  averment  (  g  ). 

Where  the  words  arc  actionable,  affecting  the  plaintiff 
*in  a  special  character,  an  averment  that  they  were  ap-    [   *418  ] 
plied  to  him  in  that  particular  character  is  necessary  (//), 
unless  that  application  necessarily  appear  from   the  words   them- 
selves ;  in  which  ease,  the  general  allegation  that  they  were  Bpoken 
concerning  the  plaintiff,  is  Bufficient. 

The  defendant  said  of  a  tradesman  (i), "  He  is  a  sorry  pitiful 
fellow,  and  a  rogue;  he  compounded  his  debts  at  live  shillings  in 
the  pound  ;"  and  the  declaration  was  held  to  be  good,  without  an 
express  colloquium  of  the  trade. 

So,  where  the  words  published  of  a  tradesman  (&)  were,  '-Have 
a  care  of  him,  do  not  deal  with  him,  he  is  a  cheat,  and  will  eheat 
you  ;  he  has  cheated  all  the  farmers  at  Epping,  and  dares  not  Bhew 
his  face  there,  and  now  he  is  come  to  cheat  at  Hatfield."  And  the 
court  said,  the  words  themselves  supply  a  colloquium  ;  they  appear 
to  be  spoken  of  his  trade. 

So,  where  the  words  spoken  of  a  justice  of  the  peace 
were,  "I  have  been  often  with  Sir  John  *Isham  for  jus-    [  *414  ] 
tice,  but  could  never  get  any  thing  at  his  hands  hut  injus- 
tice ;"  it  was  held   that  the  words  were  actionable  without  any  col- 
loquium, and  that  the  court  would  intend  that  the  words  were  spoken 
of  him  as  a  justice,  and  not  as  a  private  man  (/). 

So,  where  the  defendant  said  of  an  attorney,  "  II-  ifi  a  common 
barretor;"  it  was  held  to  be  unnecessary  to  aver  that  the  words 
were  spoken  of  the  plaintiff  in  his  profession,  for  the  court  would 

(/")  Rowe  v.  Roarh,  1  If.  and  B.  804  SaviU  v.  Jdrdint,  2  II    I  Burmtt 

{(,)  To  avoid  circumlocution,  the  term  v.  FFWZ«,  12  Str.  1169 

colloquium  is  frequently  used,  not   in   its  826.  Ld.  Ray.  610.  B  Mod.  271.,  Ci   .Car. 

strict  sense  as  denoting   a  conversation  on  117. 

the    subject   of    the    matters   previously        (»)  Uu&   Raymond,  li  I       :^iv. 

averred,  but  as    a    general    averment,  that  Smith. 

the  publication  was  made  of  and   concern-  (fc)   -I.,  v.  62 

ing  those  f icts.  (/)  Cro.  Car.  16,192,469.    C* 

(ft)  Savage    v.    Robery,   2   Salk.   694.  1  !*▼.  280. 


414      •  CIVIL  REMEDY— DECLARATION. 

intend  it,  and  that  the  words  were  to  be  construed  secundum  con- 
ditionem  personarum  of  whom  they  were  spoken. 

So,  where  (wi)  the  words  spoken  to  a  merchant  were,  "  He  is  not 
worth  a  groat,  he  is  £100  worse  than  nought." 

So,  where  the  defendant  said  to  a  physician  (V),  "  Thou  art  a 
drunken  fool  and  an  ass ;  thou  wert  never  a  scholar,  and  art  not 
worthy  to  speak,  to  a  scholar ;"  the  words  were  held  to  be  actionable, 
though  no  colloquium  was  laid  of  the  plaintiff's  profession. 

In  general,  where  facts  extrinsic  of  the  words  and  of  the  plain- 
tiff's character  are  necessary  to  support  the  action,  the 
[  *415  ]  plaintiff  must  aver  that  *the  publication  was  made  in  re- 
ference to  those  facts. 

The  declaration  (o)  stated  that  the  plaintiff,  a  constable  of  D., 
was  sworn  before  the  justices  at  their  quarter  sessions  concerning  an 
affray  made  by  the  defendant  upon  one  F.  and  that  the  defendant 
then  and  there  in  the  said  court  and  in  the  presence  of  the  justices, 
said,  he  (innuendo  the  plaintiff)  is  forsworn,  and  it  was  held,  that 
the  declaration  was  bad  without  a  colloquium  of  the  oath  so  taken, 
because  it  was  necessary  for  the  declaration  to  shew  that  the  words 
intended  a  false  oath  in  a  court  of  record. 

The  declaration  (/>)  stated,  that  the  plaintiff  had  put  in  an  answer 
upon  oath  to  a  certain  bill  filed  against  him  in  the  court  of  exche- 
quer by  the  defendant,  and  that  the  latter  in  a  certain  discourse 
which  he  then  and  there  had  with  one  R.  W.,  the  plaintiff's  servant 
said,  "  I  have  no  doubt  you  will  forswear  yourself,  as  well  as  your 
master  (the  plaintiff)  has  done,  before  you,"  meaning  and  insinuat- 
ing thereby  that  the  plaintiff  had  perjured  himself  in  what  he  had 
sworn  in  his  aforesaid  answer  to  the  said  bill  so  filed  against  him  as 
aforesaid. 

In  another  count,  the  words  spoken  by  the  defendant  to  the  said 
R.  W.  the  plaintiff's  servant,  were  laid  thus:  "Your 
[  *416  ]  *master  (meaning  the  plaintiff)  has  both  cheated  people 
out  of  their  wages,  and  forsworn  himself;"  thereby  mean- 
ing that  the  said  plaintiff  had  perjured  himself  in  the  aforesaid 
answer,  so  put  in  by  him  to  the  bill  so  filed  against  him  as  aforesaid. 
It  was  held,  after  verdict,  that  both  these  counts  were  bad,  on  the 
ground  that  there  was  no  colloquium  laid  of  the  plaintiff's  answer 
to  the  bill  in  chancery,  and  that  it  did  not  appear  that  the  words 

(m)  Cro.  Car.  265.  («)  Cro.  Car.  270. 

(o)   Drake  v.  Corderoy,  in  error,  Cro.         (/>)   Hawkes  v.  Hawkey,  8  East,  427. 
Car.  288. 


EXTRINSIC  FACTS— COLLOQI'ITM.  41G 

were  spoken  in  relation  to  that  answer,  and  that  without  such  an 
averment  the  innuendo  was  unwarranted. 

And  in  general,  as  prefatory  averment  of  the  defendant's  intention 
to  injure  the  plaintiff,  or  to  impute  a  particular  charge,  though  it  be 
coupled  with  a  subsequent  innuendo  to  the  same  effect,  will  not 
supply  the  want  of  an  express  averment,  that  the  words  were  spoken, 
or  libel  published  of  and  concerning  the  plaintiff,  on  other  subj 
matter  which  is  essential  to  the  Blander  (q). 

'The  averment  ought  to  extend  to  the  whole  of  the  [  '417  ] 
prefatory  matter  necessary  to  render  the  words  actiona- 
ble. The  plaintiff  (r)  declared,  that  some  evil  persons  unknown, 
had  feloniously  shorn  the  sheep  of  (\,  and  that  there  being  a  com- 
munication between  the  defendant  and  another,  concerning  the 
shearing  of  those  sheep,  the  defendant  said,  "  I- do  not  know  who 
did  shear  the  sheep  ;**  and  being  asked  who  it  was,  he  replied,  that 
it  was  the  plaintiff,  innuendo  felonice,  and  Eoughton  and  Doderige, 
Justices,  against  the  opinion  of  Croke,  J.  held,  that  the  words  were 
not  actionable,  since  the  colloquium  was  of  the  shearing  of  the  Bheep 
only,  and  not  of  the  felony. 

It  has  already  been  seen  that  the  danger  of  a  variance  may  often 
be  incurred  by  the  indiscreet  averment  of  too  much  prefatory  mat- 
ter, and  an  improper  application  of  the  words  or  libel  to  such  facts. 
It  is,  however,  to  be  observed,  that  although  more  than  is  necessary 
be  previously  alleged,  yet  that  if  the  colloquium  or  averment  supply 
the  words  or  libel  to  so  much  only  of  the  previous  matter  a 
proper  and  necessary,  a  variance  in  not  proving  the  rest  will  not  be 
material. 

Thus,  where  the  plaintiff  averred  that  he  followed  two  trades,  and 
that  the  defendant,  intending  to  injure  him  in  those  sev- 
eral trades,  in  a  certain  Mr-course  which  he  had  of  and  [  "41s  J 
concerning  the  said  plaintiff  in  one  of  his  trade.-,  .-poke 
the  word-  set  out,  it  was  held  that  though  the  plaintiff  failed  in 
proving  that  he  followed  both  trades,  yet  that,  having  proved  that 
he  followed  the  trades  concerning  which  the  words  were  alleged  to 
have  been  spoken,  he  was  entitled  to  recover  (*). 

(q)  R.  v.  Marsden,  4  M.  and  S.   164,  libellous  expressions  were  directly  applied 

where  it  was  held  to  be  insufficient  in  an  to  him  by  means  of  an  innuendo.     A' 

indictment,  to  aver  that  the  defendant  pub-  Johnson  v.  Aylmcr,  Cro.  J.  126.   Luwjidd 

lished  the   libel  with    intent   to  vilify  the  T.  Bancroft,   Str.  921.     R.  v.    .ildcrlon, 

prosecutor,   &c.  without  an  express  aver-  Say.  180. 

ment  that  the  libel  was  published  of  and         (r)  3  Duls.  83,  Helly  v.  Ucndcr. 
concerning  the   prosecutor,   although  the         (s)  Figgins   v.   CogtyotU,  3  M.  and  S. 


418  CIVIL  REMEDY— DECLARATION. 

INNUENDO. 

Next,  with  respect  to  the  nature  and  office  of  an  innuendo.  An 
innuendo  may  be  defined  to  be  an  averment  which  explains  the 
meaning  of  the  defendant's  publication  by  reference  to  facts  previ- 
ously ascertained  by  averment  or  otherwise  (f). 

An  innuendo  is  frequently  necessary,  where  the  language  of  the 
defendant  is  apparently  innocent  and  inoffensive,  but  where,  never- 
theless, by  virtue  of  its  connection  with  known  collateral  circumstan- 
ces, it  conveys  a  latent  and  injurious  imputation. 

Where  from  the  anbiguity  of  the  defendant's  expressions,  it  is 
doubtful  who  was  meant,  it  is  the  proper  office  of  the  innuendo  to 
render  the  allusion  clear,  by  specifically  pointing  out  the 
[  *419  ]  meaning.  As  where  but  one  or  two  letters  of  the  *name 
are  expressed,  or  the  plaintiff  is  libelled  under  a  fictitious 
or  borrowed  name,  or  where  the  libel  is  couched  under  a  fable  or 
allegory,  whose  tendency  and  meaning  it  is  necessary  to  explain  by 
reference.  Thus  in  the  case  of  Sir  Miles  Fleetwood  v.  Curl  (w), 
the  plaintiff  was  receiver  of  the  court  of  wards,  and  the  words  were 
laid  in  the  declaration,  with  an  innuendo,  as  follows  :  "  Mr.  Deceiv- 
er (meaning  the  plaintiff)  hath  deceived  the  king."  It  was  assigned 
for  error,  that  the  innuendo  could  not  be  supported,  but  the  court 
held  that  it  was  well  applied. 

So  in  an  information  against  Clerk  (x),  for  publishing  a  libel  in 
"  Mist's  Journal,"  it  was  shewn  by  proper  averments  and  innuen- 
dos,  that  in  a  pretended  piece  of  Persian  history,  the  king  and  sev- 
eral other  members  of  the  royal  family  had  been  libelled,  and  that 
the  king  was  represented  under  that  of  the  name  of  Merewits,  the 
Queen  under  that  of  Sultana,  and  that  the  character  of  the  young 
Sophia  was  intended  for  the  Pretender. 

In  Baxter's  case  (j/),  it  was  shewn  that  by  the  word  Bishops,  the 
Bishops  of  England  (c)  were  meant ;  in  the  King1  v. 
[  *420  ]  Franklin,  that  by  "  ministers,"  *were  meant  the  minis- 
ters of  the  King  of  England  (a). 

In  an  action  for  charging  the  plaintiff  with  having  said  that  he 
could  see  no  probability  of  the  war's  ending  with  France  until  the 
little  gentleman  on  the  other  side  of  the  water  (innuendo  the  Prince 

3G9.     Note  that  this  was  previous  to  the  (w)  Cro.  J.  557.     2  Roll.  Rep.  148. 

case  of  Leicis  v.  Waller,  3  B.  and  C.  138,  (x)  Barnard,  K.  B.  304.  Djg.  L.  L.  24. 

where  it  was  held  that  such  an  averment  is  (y)  3  Mod.  69. 

divisible.  (*)  3  Bac.  Ab.  454. 

(0  2  Salk.  513.     1  Lord  Ray.  256.     12  (a)  11  Mod.  99. 
Mod.  139.     1  Will.  Saund.  243. 


JNMKNDO.  420 

of  Wales)  was  restored  to  his  rights,  the  court  held,  that  this  was 
certain  enough,  even  without  an  innuendo. 

In  Tutchin's  case  (&),  the  introductory  part  of  the  information 
stated,  that  the  libel  was  written  concerning  the  royal  navy  of  this 
kingdom,  and  the  government  of  the  said  navy.  One  part  of  the 
libel  was,  "The  mismanagements  of  the  navy  (innuendo  the  royal 
navy  of  this  kingdom)  have  been  a  greater  tax  upon  the  merchant 
than  the  duties  raised  by  parliament."  And  it  was  held,  that,  "  the 
navy*'  was  well  connected,  by  means  of  the  innuendo,  with  the  royal 
navy  mentioned  in  the  introductory  part. 

In  the  King  v.  Mathews  (c),  the  information  in  the  introductory 
part  charged  the  libel  to  have  been  written  "  Of  and  concerning 
the  Pretender,  and  concerning  his  right  to  the  crown  of  Great 
Britain." 

The  words  of  the  libel  were,  "  From  the  solemnity  *of  [  *421  ] 
the  Chevalier's  birth,  and  if  hereditary  right  be  any  rec- 
ommendation, he  has  that  to  plead  in  his  favor."  And  it  was  held 
that  the  innuendos  in  the  body  of  the  libel,  explaining  the  words  to 
mean  the  Pretender,  and  his  hereditary  right  to  the  crown  of  Great 
Britain  were,  when  connected  with  the  previous  averments,  sutlicient 
to  verify  the  charge. 

The  most  important  rule  of  law  relating  to  this  species  of  aver- 
ment is,  that  its  office  is  merely  to  explain  by  pointing  out  the  defend- 
ant's allusion,  and  that  it  can  in  no  case  be  allowed  to  introduce  new 
matter.  And  the  reason  for  this  is  a  most  substantial  one  ;  for  were 
it  otherwise,  there  would  be  no  sufficient  and  distinct  averment  of  the 
existence  of  those  facts  which  in  point  of  law  are  essential  to  render 
the  words  actionable.  For  instance,  suppose  the  defendant  had 
said,"  You  are  forsworn,"  which  words  would  not  be  actionable,  un- 
less spoken  ( <l )  with  reference  to  a  judicial  oath,  if  the  plaintiff  aver- 
red by  way  of  innuendo,  and  without  reference  to  antecedent  matter, 
meaning  thereby  "  that  he  the  said  plaintiff  was  forsworn  in  a  court 
of  record,"  or  meaning  thereby  "  that  he  the  said  plaintiff  was  per- 
jured ;"  the  averment  would  involve  a  question  of  law, 
and  the  jury  would  have  to  decide  upon  'evidence,  wheih-  [  M-J'J  ] 
er  the  forswearing  did  in  law  amount  to  perjury,  and  the 
question  would  not  be  open  to  the  court  upon  the  record  ;  and  be- 
sides this,  that  clearness  and  precision  would  be  wanting  which  is  es- 
sential to  a  legal  and  technical  statement  of  the  case. 

(b)  5  St.  T.  590.     3  Ann.  1704.  (d)  Holt  v.  Scholefield,  C  T.  R.  601. 

(c)  9  St.  T.  R.  082. 

Vol.  I.  31 


422  CIVIL  REMEDY— DECLARATION. 

In  the  King  v.  Home  (e),  De  Grey,  C.  J.  observed,  "  In  the 
case  of  a  libel,  which  does  not  in  itself  contain  the  crime  without 
some  extrinsic  aid,  it  is  necessary  that  it  should  be  put  upon  the 
record  by  way  of  introduction,  if  it  is  new  matter ;  or  by  way  of 
innuendo,  if  it  is  only  matter  of  explanation.  For  an  innuendo 
means  no  more  than  the  words  '  id  est?  '  scilicet?  or  '  meaning,'  or 
'  aforesaid,'  as  explanatory  of  a  subject  matter  sufficiently  expressed 
before;  as  such  a  one,  meaning  the  defendant,  or  such  a  subject, 
meaning  the  subject  in  question." 

An  innuendo,  therefore,  cannot  extend  the  sense  of  the  words 
beyond  their  own  meaning,  unless  something  be  put  upon  the  record 
for  it  to  explain  [1]. 

As,  in  an  action  upon  the  case  against  a  man,  for  saying  of  an- 
other (/)  "  He  has  burnt  my  barn ;"  the    plaintiff  cannot  there 
say,  "  innuendo  a  barn  with  corn,"  because  that  is  not 
[  *423  ]    *an  explanation  of  what  was  said  before,  but  an  addition 
to  it. 

But  if,  in  the  introduction,  it  had  been  averred  that  the  defend- 
ant had  a  barn  full  of  corn,  and  that  in  a  discourse  about  that  barn, 
the  defendant  had  spoken  the  words  charged  in  the  declaration  of 
the  plaintiff,  an  innuendo  of  its  being  the  barn  full  of  corn  would 
have  been  good  ;  for,  by  coupling  the  innuendo  in  the  libel  with  the 
introductory  averment,  "  his  barn  full  of  corn,"  it  would  have 
made  the  sense  complete. 

An  innuendo  can  in  no  case  supply  the  want  of  a  proper  collo- 
quium. 

The  plaintiff  (,.<r),  in  the  first  count,  laid  these  words  as  spoken 
by  the  defendant,  "  John  Holt  (meaning  the  plaintiff)  has  forsworn 
himself,  (meaning  that  the  plaintiff  had  committed  wilful  and  cor- 
rupt perjury)."     After   a  general  verdict  for   the    plaintiff   with 
entire  damages,  judgment  was    arrested,  on  the  ground  that  the 
words  in  the  first  count  were  not  in  themselves  actionable,  and  that 
the  count  contained  no  colloquium  or  averment  of  the  words  having 
been  spoken  of  a  forswearing  in  a  court  of  justice,  and  the  innuen- 
do could  not  extend  their  meaning. 
[  *424  ]       In  the  case  of  the  King  v.  Alderton  (//)  the  *alleged 
libel  was  contained  in  an  advertisement,  reciting  certain 

(e)  2  Cowp.  683.  (g)  Holt  v.  Scholefield,  6  T.  R.  691. 

(/)  Ba rham's  case,  4  Co.  20.  (h)  Say.  R.  280. 


[1]  Recognized  in  Van  Vechten  v.  Hopkins,  5  Johns.  R.  220;  McClaaghry  v.  Wet- 
more,  6  Id.  83;  and  Thomas  y.  Croswell,  7  Id.  271. 


INNUENDO.  424 

orders  made  for  collecting  money,  on  account  of  the  distemper 
among  the  horned  cattle,  advertised  by  the  clerk  of  the  peace  for 
the  county  of  Suffolk  ;  and  it  charged,  thai  by  these  orders  the 
money  collected  had  been  improperly  applied.  The  information 
stated  this  to  be  a  libel  upon  the  justices  of  Suffolk.  In  the  body 
of  the  libel  it  was  cot  said,  "  by  the  order  of  the  justices,"  nor  did 
the  information  in  the  introductory  part  say  that  it  was  a  libel  of  and 
concerning  the  justices  of  Suffolk.  But  when  the  information  came 
to  state  any  of  the  orders  in  the  advertisement,  it  added  this  innu- 
endo, "meaning  an  order  of  the  justices  of  peace  for  the  county  of 
Suffolk"  but  these  innuendos  could  not  (it  was  held)  supply  the 
want  of  an  averment  in  the  introductory  part,  of  its  having  been 
written  "  of  and  concerning  the  justices,"  because  they  were  not 
explanatory  of,  but  in  addition  to  the  former. matter.  And  the 
court  were  of  opinion  that  the  information  having  omitted  the  words 
"of  and  concerning  the  justices"  in  the  introductory  part,  such 
omission  was  fatal,  and  judgment  was  accordingly  arrested. 

In  the  case  of  Hawkes  v.  Hawkey  (i),  already  refer- 
red to,  it  was  decided  that  where  the  introductory  *mattcr    [  "425  ] 
has  been  properly  stated,  it  is  necessary  to  connect  the 
whole  publication  with  it  by  means  of  a  general  averment  that  it 
related  to  such  previous  matter,  and  that  it  was  not  sufficient  to  do 
it  by  means  of  an  innuendo  only. 

Upon  motion  in  arrest  of  judgment,  Lord  Ellenborough,  C.J. 
was  of  opinion,  that  it  might  be  collected  from  what  Lord  C.  J.  De 
Grey  said,  in  the  case  of  the  King-  v.  Home,  speaking  of  Uarham's 
case  (&),  that  he  conceived  an  introductory  averment  that  the  de- 
fendant had  u  barn  full  of  corn,  and  also  an  averment  that  the  de- 
fendant spoke  the  words  in  a  discourse  concerning  that  barn.  nec<  -- 
sary  to  warrant  the  innuendo  "my  barn  lull  of  corn."  Hi-  Lord- 
ship added,  "If  abroad  rule  has  been  laid  down  as  to  the  mode  of 
declaring,  in  this  species  of  action,  whether  properly  laid  down  qr 
not,  in  the  first  instance,  it  i<  better  to  abide  by  it.  than  to  attempt 
making  nice  distinctions.  The  only  peculiarity  in  this  case  which 
is  relied  upon,  as  distinguishing  it  from  the  current  of  authorities  is, 
the  preliminary  matter  averred  respecting  the  fact  of  the. plaintiff 
having  put  in  his  answer  to  the  lull  filed  in  the  exchequer  :  and 
the  question  is  whether  the  innuendo  alone  will  refer  the  word-, 
spoken  to    such  introductory  matter  BO    a-    t"  make    it    accessary 

(i)  8  East,  427.  (it)  4  Co  20. 


425  CIVIL  REMEDY— DECLARATION. 

[  *426  ]  for  *the  plaintiff  to  prove  any  thing  which  he  must  have 
proved  had  a  colloquium  been  laid  ;  the  case  of  Savage 
v.  Robenj  seems  to  show  that  it  will  not." 

And  the  court  (/),  after  considering  the  case  of  the  King  v. 
Home,  gave  judgment  for  the  defendant. 

In  many  instances,  however,  an  innuendo  will  not  vitiate  the  pro- 
ceedings, though  new  matter  be  introduced  [aa~\. 

As,  where  the  matter  is  superfluous,  and  the  cause  of  action  is 
complete  without  it. 

The  plaintiff  alleged  (to),  that  the  defendant  addressed  these 
words  to  him,  "  Thou  art  a  rogue  and  a  rascal,  and  hast  killed  thy 
wife  ;  innuendo  one  Elizabeth,  late  wife  of  the  plaintiff."  And  the 
plaintiff  had  judgment,  though  the  declaration  contained  no  prefa- 
tory averment  that  the  wife  was  dead. 

In  Shalmer  v.  Foster  and  his  wife  (w),  the  declaration  stated 
that  the  wife  of  the  defendant  spake  of  the  aforesaid  plaintiff  to 
Ann  Rochester,  the  plaintiff's  mother,  these  words  :  "  Where  is  that 
lying  thiefe,  thy  son  (innuendo  the  plaintiff),  he  hath  murdered  my 
aunt  (innuendo  one  Dorothy  Stoke,  the  defendant's  aunt) 
[  *427  ]  and  I  will  prove  *it."  After  verdict  for  the  plaintiff, 
though  a  motion  was  made  in  arrest  of  judgment  upon 
another  ground,  no  objection  was  taken  to  the  innuendo  of  the 
plain  tiff's  aunt. 

So  where  the  words  were  laid  (o),  "  Thou  hast  robbed  the 
church"  (innuendo  the  church  of  St.  Alphage),  no  objection  was 
taken. 

In  Craft  v.  Boite  (p~),  the  words,  as  laid  in  the  declaration,  were, 
"  He  (meaning  the  plaintiff)  hath  stolen  two  hundred  pounds  worth 
of  plate  out  of  Wadham  College,"  (meaning  a  college  called  Wad- 
ham  College,  in  the  University  of  Oxford,)  though  the  declaration 
contained  no  previous  averment  of  Wadham  College,  in  the  Univer- 
sity of  Oxford.  It  is  suggested  by  the  learned  editor  of  Saunders' 
Reports,  that  the  innuendo  is  on  such  account  improper  ;  the  objec- 
tion, however,  appears  to  be  rather  of  form  than  of  substance  ;  and 
probably  such  a  declaration  would  be  held  to  be  good,  on  general 
demurrer  or  after  verdict,  since  the  gist  of  the  action  is  the  charge 
of  stealing  from  Wadham  College,  which  is  entirely  unconnected 

(/)   Cowp.  680.  (m)    Wilner  v.  Hold,  Cro.  Car.  489. 

[a  a]  See  Archbishop  of  Tuam.  v.  Robe-  (n)  Cro.  Car.  496. 

son,  5  Bingh.  17.     See  also  p.  342,  supra,  (o)  Cro.  J.  153.     1  Vin.  Ab.  512. 

note  [a  a.]  (/>)  1  Will.  Saun.  243. 


INNUENDO.  427 

with  the  situation  of  the  college  in  the  University  of  Oxford,  so  that 
the  innuendo  might  be  expunged  without  affecting  the  cause  of  ac- 
tion. 

In  Roberts  v.  Cambden  (7),  the  defendant  Baid,  "  II" 
(meaning  the  plaintiff)  is  under  a  charge  of  a  1  *428  ] 

tion   for  perjury.      (J.  W.  had  the    attorn  il'a 

directions  to  prosecute  ;"  and  an  innuendo  that  tin-  attorney-general 
for  the  county  palatine  of  Chester  was  meant,  was  rejected  a-  BUT- 
plusage. 

An  innn  m  lo,  when  repugnant  or  insensible,  may  be  rejected  (r). 

The  record  of  Nisi  l'rius  stated,  that  the  said  William  Bpofi 
the  said  James  these  scandalous  words  following:  "  Ee  (innuendo 
the  said  William)  is  a  thief,"  where  the  innuendo  should  have  been 
of  Jam  •-•.  After  a  verdict  for  the  plaintiff  it  was  held  that  he  was 
entitled  to  his  judgment,  since  the  innuendo  was  void,  and  an  appa- 
rent misprision. 

It  docs  not,  in  any  case,  seem  necessary  that  the  innuendo  should 
in  terms  state  the  legal  inference  which  is  to  be  drawn  from  the 
publication,  as  connected  with  the  facts  stated  ;  its  office  seems  more 
properly  confined  to  mere  reference  of  the  defendant's  moaning  to 
previous  matter;  and,  indeed,  such  an  averment  would  be  improper, 
since  the  actionable  nature  of  t!i3  charge  is  a  matter  of 
law,  which  the  court  will  collect  from  *the  facts,  if  they  [  *d29  ] 
warrant  such  a  conclusion  ;  and  if  they  do  not,  no  innu- 
endo of  their  legal  effect  will  avail  to  render  them  actionable. 

Thus,  where,  from  the  circumstances,  it  appears  upon  the  whole 
that  the  defendant  intended  to  impute  a  charge  of  wilful  murder,  it 
is  unnecessary  for  the  plaintiff  t  )  assert,  by  way  of  innuendo,  that 
the  defendant  meant  to  impute  the  very  crime  of  murder. 

In  Peafce  v.  Oldham  (*),  in  error,  the  plaintiffs  declared,  that 
upon  a  colloquium  concerning  the  death  of  one  Daniel  Dolly,  the 
defendant  said  to  the  plaintiff,  "  Von  are  a  bad  man,  and  I  am 
thoroughly  convinced  that  you  are  guilty  (meaning  guilty  of  the 
death  of  the  said  Dolly,)  and  rather  than  that  you  should  want  a 
hangman,  1  will  hang  you." 

After  a  general  verdict  with  damages,  the  defendant  brought  a 
writ  of  error.  Judgment  however,  was  affirmed,  though  the  count 
alluded  to  contained  no  express  allegation,  by  way  of  innuendo  or 

(7)  9  East,  93.  innuendo  explained  tu  mean  crater 

(r)  Cro.  Car.  512.     See  also  R  v.  Ay-         («)    1  Cowp  1175. 
Ittt,  1  T.  R.   63,  where   door  was  by    the 
31* 


429  CIVIL  REMEDY— DECLARATION. 

otherwise,  that  the  defendant  intended  to  charge  the  plaintiff  with 
the  crime  of  murder. 

And  though  in  the  above  case  special  damage  was  laid,  it  appears 
that  the  court    held  the  words  to  be  in   themselves  actionable  ; 

and  Lord  Mansfield  observed,  "  These  words  plainly 
[  *430  ]  show  what  *species  of  death  the  defendant  meant,  and 

therefore  manifestly  in  themselves  import  a  charge  of 
murder."  On  the  contrary,  if  the  plaintiff  undertakes  to  explain 
the  import  of  the  words,  by  specifying  the  particular  imputation 
intended  by  the  defendant,  such  explanation  will  not  vitiate  the 
declaration,  provided  such  an  intention  can  be  collected  from  the 
circumstances.  Thus,  in  the  case  last  alluded  to,  where  a  collo- 
quium was  laid  concerning  the  death  of  Daniel  Dolly,  the  plaintiff, 
in  his  fifth  count,  laid  the  words,  "  You  are  guilty,"  (innuendo  of 
the  murder  of  D.  D.)  and  the  count  was  held  good  after  verdict, 
though  the  colloquium  was  of  the  death  only,  and  the  innuendo  of 

the  murder  (0- 

An  innuendo  in  one  count  may  be  supported  by  a  colloquium  in 
a  previous  one.  In  Tindall  v.  Moore  (w),  the  words  laid  in  the 
first  count  were,  "  That  rogue  Joe  Tindall  meaning  the  plaintiff) 
set  the  house  on  fire,"  meaning  the  summer  house  that  was  burnt 
in  the  occupation  of  one  Mr.  Cotten.  In  the  fifth  count  the  words 
were,  "Joe  Tindall  (meaning  the  plaintiff)  set  the  house  on  fire," 
(meaning  the  same  house.)  It  was  moved,  in  arrest  of  judgment, 
that  the  words  in  the  last  count  were  not  actionable, 
[  *431  ]  for  *that  every  count  in  a  declaration  is  a  substantive 
count,  and  that  the  innuendo  (meaning  the  same  house) 
could  not  relate  to  the  summer-house  mentioned  in  the  first  set  of 
words.  But  by  the  court,  although  the  last  set  of  words  be  not  of 
themselves  actionable,  yet  they  shall  have  relation  to  the  former  set. 

From  these  decisions  it  appears,  that  the  colloquium  and  innuendo 
are  averments,  whose  office  it  is  to  connect  the  defendant's  publi- 
cation with  the  prefatory  matter. 

That  the  first  is  a  general  averment,  connecting  the  whole  of  the 
publication  with  the  previous  statement ;  the  latter  a  subordinate 
averment  connecting  particular  parts  of  the  publication  with  what 
has  gone  before,  in  order  to  elucidate  the  defendant's  meaning  more 
fully. 

(t)  See  also    Woolnoth  v.  Meadows,  5        (u)  2  Wils.  114. 
East,  4G3,  and   Dame  Morrison  v.  Cade, 
Cro.  J.  162. 


AVEBMENT  OF  MALICE.  431 

That  the  want  of  colloquium  cannot  be  supplied  by  an  innuendo. 

That  the  oflicc  of  the  innoendo  is  confined  to  :i  -iui j>le  explana- 
tion of  the  defendant's  meaning  bj  reference  to  previous  matter. 
That  it  cannot,  in  any  ease,  supply  the  want  of  prefatory  averments 
and  of  a  colloquium,  in  order  either  to  explain  or  extend  the  mean- 
ing of  the  words  or  libel  Bel  out,  where  Buch  an  explanation  or  ex- 
tension, with  reference  to  extrinsic  matter,  is  necessary. 

It  would  not  lie  easy,  or  perhaps  possible,  to  point  out  a  more 
clear  and  convenient  process  for  technically  Btating  a 
"case  upon  the  record,  than  this,  which  has  with  great  [  "432  ] 
wisdom  been  adopted  by  the  law  from  very  early  times; 
it  combines  simplicity  witli  precision,  separating  the  law  from  the 
facts,  and  exhibiting  a  statement  of  the  cause  of  action  on  the  face 
of  the  record,  plain  and  distinct  in  all  its  pari-. 

It  is  true  that,  in  some  instances,  justice  may  be  defeated  from 
want  of  attention  to  the  maxims  which  regulate  this  kind  of  state- 
ment ;  but  it  is  equally  true,  that  tins  cannot  happen  without  faulty 
inattention  to  a  few  plain  and  rational  rules,  and  that  the  failure 
might  have  been  prevented  by  the  exertion  of  a  moderate  share  of 
prudence,  aided  by  a  very  small  stock  of  legal  knowledge  ;  and  that, 
on  the  other  hand,  the  general  advantages,  in  point  of  perspicuity 
and  legal  precision  which  result  from  an  adherence  to  these  rules, 
are  too  great  to  be  placed  in  competition  with  the  rare  and  partial 
inconvenience  arising  from  ignorance  or  inattention. 

•avbrment  of  malice. 

Next,  as  to  the  averment  of  the  defendant's  intention.   [  *433    ] 

Malice  cither  in  law  or  fact  is  essential  to  the  action, 
and,  consequently,  a  corresponding  allegation  is  essential  to  a  com- 
plete declaration. 

No  precise  and  prescribed  form  of  words  is  requisite  for  this  pur- 
pose, though  tli>'  term  malicious^  as  applied  to  the  matter  published, 
and  maliciously  to  the  act  of  publishing,  are  the  most  usual  and  ajh 
propriate  terms  (a). 

Any  form  of  words  will  suffice  from  which  the  malicious  intent 
can  be  inferred  ;  thus  it  has  beeo  held  to  he  sufficient  t<>  aver,  that 
the  defendant  spoke   the  words   or  published   the   libel  falsely  or 

(a)  As  to  tho  limited  and  technical  sense  this  species  of  injury,  vide  supra.  3,  20'J, 
in  which  malice  is  used  as  descriptive  uf    292,  and  infra,  464. 


433  CIVIL  REMEDY— DECLARATION. 

wrongfully  (£),  or  that  the  defendant  machinans  pejorare  dixit  (c). 
And  Rolle,  C.  J.  (d)  was  of  opinion,  that  in  a  declaration  it  is 
not  necessary  to  use  either  the  words  falsely  or  maliciously,  though 
it  is  otherwise  in  case  of  an  indictment  or  information.  But  it  is 
suggested  by  Mr.  Serjeant  Williams,  in  his  *notes  on 
[  *434  ]  Saunders  (<?),  that  this  must  be  taken  to  mean  that  the 
omission  would  not  be  fatal  after  verdict. 

But  such  words,  it  seems,  are  essential  in  indictments  and  infor- 
mations (/).    • 

It  has  been  the  fashion  with  pleaders,  both  ancient  and  modern, 
to  deal  so  profusely  in  the  evil  motives  and  intentions  attributable 
to  the  defendant,  that  few  cases  are  to  be  met  with  where  any  ob- 
jection has  been  taken,  for  want  of  an  averment  of  this  nature. 

It  docs  not  appear  to  be  necessary  (/)  for  the  plaintiff  to  make 
any  averment  by  way  of  exculpation,  since  it  is  incumbent  on  the 
defendant  in  case  he  means  to  rely  on  the  justice  of  the  charge  in 
his  defence,  to  plead  the  justification  specially,  and  he  cannot  give 
it  in  evidence  under  the  general  issue. 

And  perhaps  the  averment  of  innocence,  on  the  part  of  the  plain- 
tiff, of  the  charge  cast  upon  him,  or  of  the  falsity  of  the  defendant's 
publication,  would  be  considered  as  unnecessary,  on  account  of  the 
general  presumption  which  the  law  entertains  of  a  man's  innocence 
till  the  contrary  be  made  to  appear.  Formerly,  however,  it  was 
held  to  be  incumbent  upon  the  plaintiff  not  only  to 
[  *435  ]  *aver  the  falsity  of  the  charge  in  general  terms,  but  also 
to  negative  particular  facts  contained  in  the  publication 
complained  of ;  for  instance,  where  the  slander  was  published  as 
heard  from  another  (g-),  it  was  held  to  be  necessary  to  aver  that  the 
defendant  had  not  heard  it. 

But  in  Hooker  v.  Tucker  (A),  it  was  held  by  Holt,  C.  J.  that  in 
a  declaration  for  these  words  of  a  trader,  "  He  is  a  pitiful  fellow, 
and  not  able  to  pay  his  debts,"  there  needed  no  averment  that  he 
was  no  pitiful  fellow,  and  that  he  was  able  to  pay  his  debts. 

So,  in  Bendish  v.  Lindscy  (i),  where  the  action  was  brought  for 
charging  the  plaintiff  with  bribery  at  an  election,  the  defendant, 

(b)  Moor,  459.     Ow.  51  Noy,  35.  (/)  2  Wils.  147. 

(c)  Danv.  106.  Com.  Dig.  tit.  Defama-  (y)  Morrison's  case,  Skeppard  Ac.  2G7- 
tion,  G.  5.  {h)  Holt.  R.  39. 

(rf)  Sty.  392.  (i)  11  Mod.  194. 

(«)  2  Will.  Saund.  242. 
(/)  Sty.  392.  Per  Roll.  C.  J.     1  Vin. 
Ab.  533,  pi.  3. 


AVERMENT  OF  MALICE.  435 

holding  up  some  guineas  in  his  band,  Bald  of  the  plaintiff,  who  was 
a  candidate,  "These  guineas  are  Mr.  Bendish's  money,  and  were 
given  me  to  vote  for  him;  he  has  bought  my  rote,  and  he  ^liall 
have  it."  It  was  objected  in  arrest  of  judgment,  after  verdict  lor 
the  plaintiff,  that  it  was  not  averred  throughout  the  whole  pleading, 
that  the  plaintiff  did  not  give  the  money.  But  Bolt,  C.  J.  said  it  q<  1 
not  be  averred  thai  the  plaintiff  did  not  give  the  money,  for  it  i-  -aid, 
hose  falsa  ficta  maliliosa  verba,  which  is  well  enough. 

*Tlie  falsity  of  the  charge  may  he  implied  from  the       '486   ] 
averment  that  it  was  made  ex  malilia,  since  the  term,  in 
its  Legal  souse,  imports  a  publication  without  legal  excuse  (A  i. 

Where  a  party  repeats  the  slander  of  another,  knowing  it  to  be 
false,  and  that  the  author  has  retracted  his  assertion  or  opinion,  it 
seems  that  an  action  is  maintainable  against  the  reporter,  though  at 
the  time  of  publication,  he  announced  the  name  of  the  person  from 
whom  he  heard  it;  but  in  such  case,  it  would  be  proper  to  aver  the 
defendant's  knowledge  in  the  declaration;  for,  if  the  fact  were  not 
to  be  averred  in  the  declaration,  and  the  defendant  pleaded  that  he 
gave  the  plaintiff  a  cause  of  action  by  naming  his  author,  the  plain- 
tiff might  be  considered  as  precluded  from  replying  that  the  defend- 
ant maliciously  published  the  slander  against  his  own  knowledge 
and  conviction  ;  for  if  he  could  reply  it,  issue  must  necessarily  be 
joined  upon  the  fact  of  knowledge,  which,  as  has  been  held,  is  not 
traversable. 

Thus,  in  the  case  of  Sir  G.  Gerrardv.  Dickenson  (/),  the  action 
was  brought  for  publishing  a  lease,  knowing   it   to  be 
counterfeit,  and  thereby  "hindering  the  plaintiff  from  let-    [  *4o7  ] 
ting  bis  land;  the  defendant  pleaded,  that  she  found  the 
lease,  and  traversed  her  knowledge  of  the  forgery;  and  the  idea 
was  held  to  be  insufficient,  because  the  knowledge  of  the  forgery  is 
not  traversable,  any  more  than  the  scu  nit  r  in  an  action  on  the  i 
where  the  defendant's  dog  has  bit  the  plaintiff's  cattle,  and  wh 
the  plaintiff  avers  that  the  defendant  knew  that  the  dog  was  a. -cus- 
tomed to  bite   Bheep.     The  objection  to  traversing  the  scienter 
which  has  been  assigned,  IS,  that  it  is  no  direct  allegation,  nor  ever 
alleged  iii  any  place,  and  therefore  cannot  be  tried  I  m  i.     This  ob- 
jection, on  the  score  of  locali:  when  it  was  do  Longer 

(k)  Johnson  v.    Sulton,   1    T.  K    49&        [I)   I  Bep.  18. 
Cro.  Cur.  271.   Supra  8,  209,  292.    Intra  (»)    i  B«] 

454. 


437  CIVIL  REMEDY— DECLARATION. 

required  that  the  venire  should  be  awarded  from  the  vicinage  ;  and 
there  seems  to  be  no  very  satisfactory  reason  why  a  party  in  plead- 
ing should  not  confine  the  evidence  by  traversing  any  distinct  cir- 
cumstance which  is  essential  to  his  adversary's  case,  and  which  must 
be  proved  upon  the  trial.  Since,  however,  the  technical  objection 
to  traversing  the  scienter  has  not  been  judicially  defeated,  it  would 
not  be  proper  to  omit  the  averment  of  knowledge  in  the  declaration, 
in  a  case  where  it  is  material;  as,  where  a  party  has  repeated  [1] 
slander,  knowing  the  author  to  have  been  convinced  of  his  error,  or 
sets  up  a  lease  which  he  knows  to  be  a  forgery,  for  the  purpose  of 

injuring  the  plaintiff. 
[  *438  ]        *Where  particular  circumstances  have  been  introduced, 
to  shew  the  defendant's  conduct  to  have  been  malicious, 
it  will  be  necessary  to  prove  them  upon  the  defendant's  pleading  the 
general  issue  (n). 

It  is  sometimes  advisable,  and  perhaps  necessary,  to  allege  the 
malicious  intention  in  particular  with  which  the  defendant  uttered 
the  words  or  published  the  libel.  Thus  it  may  be  necessary,  in  an 
indictment  or  information,  to  allege  that  he  did  so  with  intent  to 
provoke  another  to  commit  a  breach  of  the  peace  (o),  or  with  intent 
to  defame  a  particular  class  of  persons,  or  to  bring  the  administra- 
tion of  justice  into  contempt.  Where  a  libel  has  been  alleged  to 
have  been  published  with  several  intentions,  which  are  in  their  own 
nature  distinct  and  divisible,  it  will  be  sufficient  to  prove  that  the 
fact  was  done  with  any  one  of  such  different  intentions,  provided  the 
publishing  the  particular  matter  with  that  intention  be  criminal. 

Thus,  where  a  libel  was  alleged  to  have  been  published  with  in- 
tent to  bring  the  administration  of  justice  into  contempt, 
[  *439  ]    and  also  to  defame  particular  magistrates,  it  was  *held, 
that  the  defendant  was  liable  to  be  convicted,  if  a  publi- 
cation, with  either  of  those  intentions,  was  proved  (7?). 

Next,  as  to  the  statement  of  the  loss  or  damage  to  the  plaintiff 
resulting  from  the  wrongful  act  of  the  defendant. 

Where  the  words  are  intrinsically  actionable,  the  loss  to    the 

(«)  2  East,  437.  was  written  with  intent  to  provoke  him  to 

(0)  See  R.    v.    Wegener,   Starkie's    C.  commit  a  breach  of  the  peace. 

Where  Abbott,  C.  J.  held,  that  a  libel  writ-  (p)  R.  v.  Evans,  Cor.  Bayley,  J.  Lane, 

ten  to  an  attorney  and   containing  reflec-  sp.  assizes,  1821.     See  also  R.  v.  Dawson, 

tions  on  his  professional  character,  was  not  Cor.  Holroyd,    J.    York  summer   assizes, 

indictable    without    an    allegation,  that  it  1821.     Starkie  on  Evidence,  iv.  15.  86. 


[1]  See  note  [1].  p.  340,  supra. 


AVERMENT  OF  DAMAGE.  439 

plaintiff  is,  aa  lias  been  seen,  a  mere  inference  or  presumption  of 

law;  and  it  does  not  seem  to  be  I essary  for  the  plaintiff  to  aver 

that  the  wunls  complained  of  amount  to  the  charging  of  a  precise 
crime  ;  for  their  actionable  quality  is  a  question  of  law,  and  not  of 

fact,  and  will  be  collected  by  the  court  from   the  circumstai b,  if 

they  warrant  it  (7).  Bui  in  Buch  case,  it  may  frequently  be  advis- 
able to  aver  special  damage  to  have  beea  sustained  in  consequence 
of  the  words :  such  an  averment  will  nut  prejudice,  Bince  it  will 
not  be  necessary  to  prove  it  on  the  trial.  \\'  no  rocb  proof  I"'  then 
given,  and  the  jury  give  a  general  verdict,  the  defendant,  if  it  should 
be  necessary  afterwards  in  order  to  enable  him  to  move  in  arrest  of 
judgment,  may  have  the  verdict  amended  by  confining  ( t ) 
it  *to  the    actionable    words  according  to    the   jud  '!!•>] 

notes. 

Formerly  it  was  held  (.v)  that,  where  the  words  were  not  action- 
able, but  the  special  damage  was  the  gist  of  the  proceeding,  such 
special  damage  might  be  given  in  evidence,  although  the  particular 
instances  of  the  special  damage  were  not  stated  in  the  declaration; 
but  that,  when  the  words  themselves  were  actionable,  particular 
instances  of  such  damage  could  not  be  given  in  evidence,  unless  spe- 
cified on  the  record. 

But  the  modern  practice  (0  docs  not  warrant  this  distinction, 
and  at  the  present  day  it  seems  that  in  both  cases  the  particu- 
lar damage  must  be  specified  [1]. 

The  general  rule  of  pleading,  as  to  special  damage,  is,  tint,  it 
must  be  averred  with  that  degree  of  certainty  and  particularity 
which  the  case  admits  of,  in  order  that  the  defendant  may  be  aj>- 
prized  what  it  is  he  comes  to  answer,  though  in  som  •  cases  where 
particularity  would  be  productive  of  inconvenience,  and  the  circum- 
stances arc  not  immediately  within  the  knowledge  of  tin-  party,  a 
more  general  statement  has  been  deemed  to  be  sufficient. 

•Thus  the  averring  generally,  that  by  means  of  the    |    '111   ] 
publication,  several  customers  (  not  naming  them  >  left  the 
plaintiffs  house,  is  not  sufficiently  precise  <  "  >. 

(q)  See  Peake  v.  Oldham,  Cowp.  Rep.  though  the  record  is  one  of  another  ourt 
275.  (*)  B row ni itij  v.  Newman,  1  8b 

(r)  This   is   done  at    chambers,   as  of        (/)   15.  N.  1'.  7.     1  Will.  S.uin  1.   248.  n. 

course,  without  a   motion    in  court.     The  5.  Btr. 

application    must    be  made   to  the    judge         (■»)   11.  N    P.  7.     1   BoH  Air.  68.     8  T. 

who   tried   the  cause  (if   at   the  assizes,)  R.   130. 

[1]  Same  doctrine  held  iu  Herrick  Y.  Lapham,  10  Johns.  881;  Htrth  v.  liingwalt, 
3  Yeates  o08. 


441  CIVIL  REMEDY— DECLARATION. 

And  so,  where  the  alleged  damage  consists  in  loss  of  marriage  (V), 
the  plaintiff  must  point  out  the  individual  with  whom  the  marriage 
would  otherwise  have  been  contracted. 

And  for  the  same  reason,  where  the  plaintiff  states  a  marriage 
with  J.  N.  to  have  been  hindered,  he  cannot  afterwards  give  in 
evidence  loss  of  marriage  with  any  other  person  (y). 

But  it  has  been  said,  that  greater  certainty  is  requisite  where 
the  special  damage  is  the  gist  of  the  action,  than  where  it  is  merely 
laid  by  way  of- aggravation  (s). 

Where  the  special  damage  consists  in  the  (a)  plaintiff's  having 
been  prevented  from  disposing  of,  or  selling  his  estate,  it  is  necessary 
to  shew  how  he  was  prevented,  as  that  he  had  taken  some  steps  for 
the  purpose  of  selling  and  that  the  bidding  was  stopped  by  the  defend- 
ant's act ;  but  it  is  unnecessary  to  specify  the  names  of  any  of  the 
bidders. 

*  Where  the  plaintiff  (6),  who  had  been  a  preacher  in 
[*442  ]  a  chapel  to  a  dissenting  congregation,  averred  generally 
in  the  declaration,  that  by  reason  of  the  words  the  per- 
sons who  frequented  the  said  chapel  had  refused  to  permit  him  to 
preach  there,  and  had  discontinued  giving  him  the  gains  and  profits 
which  they  had  usually  given,  and  otherwise  would  have  given  ;  the 
cour.t  held,  on  motion  in  arrest  of  judgment,  that  where  a  plaintiff 
brings  an  action  for  slander,  by  which  he  lost  his  customers  in  trade, 
he  ought,  in  his  declaration,  to  state  the  names  of  those  customers, 
in  order  that  the  defendant  may  be  enabled  to  meet  the  charge,  if  it 
be  false  ;  but  that  in  the  principal  case,  the  plaintiff  could  not  have 
stated  the  names  of  all  his  congregation,  and  that  it  was  sufficient 
to  say  that  he  had  been  removed  from  his  office,  and  had  lost  the 
emoluments  of  it(c). 

Where  actionable  words  are  spoken,  within  the  scope  of  a  private 
jurisdiction,  the  declaration  may  allege  a  consequential  loss  of  cus- 
tomers at  a  place  beyond  the  limits  of  such  jurisdiction.  For  the 
allegation  is  only  in  respect  of  damages  to  increase  them,  and  may 
be  inquired  of  in  any  place  whatsoever  (d). 

Where  the  words    are  in  themselves  actionable,  and  the   par- 

(x)  1  Sid.  396.  1.  Vent.  4.    Cro.  J.  499.         (b)  Hartley  v.  Herring,  8  T.  R.  130. 
12  Mod.  597.  .  (c)  4  Burr.  2124. 

(y)  Lord  Ray.  1007.  (d)  Ireland  v.  Blockwell  in  error,  Cro. 

(2)  Per  Cur.  in  Wether  ell  v.  Clerkson,     C.  570. 
12  Mod.  597.  2  Lut.  1295. 

(a)  Smead  v.  Badley,  Cro.  J.  397.     Sir 
W.  Jones,  196. 


AVERMENT  OF  DAMAGE.  442 

ticular  'character  of  the  plaintiff  is  stated  in  aggra-  [  *443  ] 
vation,  it   is  not  necessary  to  state  the  cirenmstan 

of  that  situation  with  so  great  certainty  as  where  it  is  essential  to 
the  action.  Thus,  where  the  words  are  spoken  of  a  candidate  to 
serve  in  parliament,  it  is  sufficient  to  Btate  the  fact  generally,  and  it 
is  unnecessary  to  Bet  forth  the  writ  to  the  Bheriff(e). 

In  general  (/),  the  place  where  the  words  are  Bpoken  is  imma- 
terial; yet,  it  has  been  said  that  if  the  plaintiff  state  the  plai 
way  of  aggravation,  and  not  merely  as  venue,  he  will  be  bound  to 
prove  the  speaking  to  have  been  in  the  place  named. 

With  respect  to  joining  different  injuries  in  the  same  proceeding, 
words  spoken  at  different  times  may  be  included  in  the  same  count. 

In  Buch  case,  however,  if  it  should  appear  on  the  face  of  the 
count  that  the  words  were  spoken  at  different  times,  and  that  some 
of  them  were  not  actionable,  judgment  would  be  arrested,  if  entire 
damages  were  given  for  the  whole  count. 

And  a  count  for  oral  slander  (§•)  may  be  joined  with  a  count  for 
a  libel  in  the  same  declaration.     'And  the  imposing  cri- 
men feliohcB  and  causing  (/*)  a  plaintiff  to  be  brought    [  *444  ] 
before  a  magistrate  may  be  joined  with  a  complaint  for  a 
malicious  accusation  before  the  magistrate. 

If  the  plaintiff  recover,  he  cannot,  it  seems,  afterwards  recover  in 
respect  of  any  special  damage  which  accrued  subsequently  from  the 
speaking  of  the  same  words  (t). 

Where  the  words  are  intrinsically  actionable,  special  damage, 
though  averred,  need  not  be  proved  (&.) 

In  the  proceeding  by  writ  of  scandalum  magnatum,  the  plaintiff 
declares  (am  pro  domino  reg-e  quam  pro  scipso  (i),  though  he  is 
entitled  to  the  whole  of  the  damages  recovered. 

It  has  been  held  (»*),  that  the  -tatutc  2  R.  2.  st.  1.  c.  5,  is  a 
general  law,  and  that  the  plaintiff  need  not  recite  it  in  his  declara- 
tion ;  but  that  if  he  undertake  to  recite  it  and  vary  from  it  in  any 
material  point,  the  declaration  will  be  bad. 

(<>)  Harwood  v.  Sir  J.  Aslley,  1  N.  II.  47.  was  an  aggravation  of  the  false  and  mali- 

(/)  13.  N.  P.  5  tamen  qu.  &  vil  St.irkie  emus  Mentation. 
on  Evidence,  tit.  Variance.     Plac:  (i)  B.   N.  P.  7.    tamen  qu.  &  \ii.     2 

(</)   King\.  Waring  and  uxor,  5  Esp.  Mod.  151,  contra. 
C.  13.  (*)   Cook  v.  Field,  3  Esp.  C.  133. 

(h)  Cro.  Car.  271.     Note  that  the  court         (/)  G  Bac.  Ab.  100.     1  P.  Will.  690. 
held  that  the  charge  before  the  magistrate         (m)  4  Co.  12  b.     Cro.  Car.  186.     Com. 

was  not  in  the  nature  of  a  conspiracy,  but  Dig.  Defam.  B.  3. 

Vol.  I.  32 


444  CIVIL  REMEDY— DECLARATION. 

Where  a  charge  has  been  falsely  and  maliciously  made 
[  *445  ]    in  a  judicial  form,  the  plaintiff,  as  has  been  *seen,  can- 
not declare  simply  on  the    slander  (w)  but  must  found 
his  action  on  the  particular  circumstances  of  the  case.     The  declar- 
ation must  shew, 
1st.  A  prosecution  instituted  and  determined. 
2dly.  That  the  defendant  acted  maliciously  and  without  probable 
cause  in  the  prosecution  of  a  false  charge. 
3dly.  The  damage  resulting  to  the  plaintiff. 
1st.  A  prosecution  instituted  by  the  defendant  and  since  deter- 
mined. 

The  fact  of  the  prosecution  must  of  course  be  alleged  according 
to  the  particular  circumstances. 

Where  the  prosecution  was  by  preferring  a  bill  of  indictment, 
which  was  found  to  be  a  true  bill,  the  declaration  may  state  that  the 
defendant  indicted,  and  caused  and  procured  to  be  indicted,  the  said 
plaintiff,  and  the  material  parts  should  be  set  out.  But  where  the 
jury  have  thrown  out  the  bill,  it  should  be  described  as  a  bill  and 
not  as  an  indictment  (o.) 

Formerly  it"  was  held  to  be  necessary  to  show,  that  the  prosecu- 
tion was  instituted  before  a  court  of  competent  jurisdiction,  to  try 
the  supposed  offender  for  the  offence  imputed  (P-)  But 
[  *446  ]  *it  seems  to  be  now  settled,  that  an  action  on  the  case 
may  be  supported  for  an  arrest,  though  the  court  from 
which  the  process  issued  had  no  jurisdiction  (#,)  and  that  an  action 
may  be  supported  for  a  malicious  prosecution  of  a  defective  indict- 
ment, and,  therefore,  at  this  day,  it  does  not  appear  to  be  necessary 
to  make  any  averment  (r)  as  to  the  competency  of  the  court. 

And  it  has  been  held,  that  the  style  of  the  court  need  not  be  ex- 
actly copied  (s.) 

(n)  Vide  supra  276,  and  it  seems  that  15.     Such  an    action    lies  in  respect  of  a 

in  general  where  the  action  is  not  main-  malicious  charge  in  the  Ecclesiastical  Court. 

tainable,  unless  the  act  be  done  maliciously  Gibs.  216.     Bunb.  247.  Burn's  Ecc.  Law. 

and  without  probable  cause,  the  declara-  tit.  Churchwarden. 

tion  ought  to  aver  the  special  circumstances         (s)  Where    the  plaintiff  alleged  an  in- 

and  allege  the  malice  and  want  of  probable  dictment  at  the  quarter  sessions,  and  by 

cause,  the  record  it  was  at  the  general  sessious, 

(o)  Com.  Dig.  Ind.  B.     5  TaTint.  187.  the  word  quarter  was  rejected  as  surplusage. 

1  Salk.  376.  Busby  v.   Watson,  2  Bl.  1050.     But  it  was 

(p)  Com.  Dig.     Action  on  the  case  for  held,  that  it  would  have  been  otherwise, 

a  conspiracy.    C.  4  Rol.  Ab.  Action  sur  if  the  offence  had  been  cognizable  only  at 

case  50.  the  quarter  sessions,  and  not  at  the  general 

(q)  2  Wils.  302.  sessions.     See  also  Constantine  v.  Barnet. 

(r)  4  T.  R.  247.     2  Str.  691.     1  Salk.  Cro.  J.  32. 


MALICIOUS  PROSECUTION.  446 

If  the  declaration  set  forth  an  indictment  containing  several  char- 
ges, it  is  sufficient  to  prove  Unit  Borne  of  them  were  maliciously  pre- 
ferred, though  there  was  ground  for  the  rest  (/.) 

It  is  not  necessary,  as  in  a  declaration  for  Blander  'or  [   Ml.   ] 
libel,  to  state  the  very  words  or  expressions  used  in  mak- 
ing the  charge ;  for  the  malicious  prosecution,  and  not  the  words 
themsi  Ives,  is  th  i  gist  of  the  action.     But  it  is  necessary  I  i  -tate 
the  substance  of  the  charge.     Where  the  prosecution   is  by  indict' 
ment,  the  declaration  Bhould  Btato  the  material  parts  of  the  indict- 
ment.   Where  the  prosecution  is  by  application  to  a  magistrate,  the 
substance  of  the  charge  should  be  stated  according  to  the  maj 
tratc's  warrant,  or  from  the  written  examination  of  the  defendant 
before  the  magistrate,  where  the  content-  of  those  documents  can 
be  ascertained.     It  is  sufficient  to  describe  the  Bubstance  of  the 
charge  and  advisable  to  state  merely  the  substance,  in    order  to 
avoid  the  danger  of  variance. 

Where  the  declaration,  professing  to  set  out  the  substance  of  the 
charge,  in  specifying  the  goods  and  their  value,  used  the  word  val- 
oris  for  valenlice,  it  was  held  that  the  variance  was  immaterial  ( //.  ) 
But  it  was  said,  that  it  would  have  been   otherwise,  had  the  indict- 
ment been  set  out  in  hcec  verba  (re.)     So  where  the  declaration  al- 
leged that  the  defendant  charged  the  plaintiff  before  the  magistrate 
with  assaulting  and  beating  him,  and  the  charge  was,  in  fact,  for  as- 
saulting and  striking,  it  was   held  that  the   description 
was  *in  substance  correct  (//).     So,  where  the  declara-        '11s    1 
tion  for  a  malicious  arrest  stated  the  warrant  to  be  to 
arrest  the  plaintiff  for  an  assault,  with  intent  to  rob  A.  (the  inform- 
ant,) and   the  words   of  the  warrant  were   to   rob.  as   he  verily  be- 
lieves  (cr.)     Where    the   declaration    alleged    that    the    defendant 
charged  the  plaintiff  with  felony  before  a  magistrate,  it  was  held 
that  the  averment  was  supported  by  proof  of  a  charge  made,  stating 
the  suspicion  of  the  defendanl  <  ". ) 
A  general  allegation  that  the  defendant,  made  a  charge  of  felony, 

&c.  (crimen  felonise  imposuit)  is  sufficient,  or  at  least  it  is  g i  after 

verdict  (6).     For  such  an  allegation  is  not  supported  by  proof  of 

(/)   Reed  v.  Taylor,  4  Taunt.  616.  (a)   Davis  v.  .\~oah\  1  Star! 

(«)  Johnson  and  uxor  v.   Browning,  6     Cur.    Lord   Bllenboroogh,  C. 

Mod.  21G.  wards  by  the  Court  of  King's  Benoh,  B  ••>  - 

(x)   It).  1  t_v .                   ate. 

(y)   Bynev.  Moore,  1  Taunt.  589.  (M   Bee  Davit  v.  Abflfc,   1    Stark     -  C 

(z)   But  note  that  a    juror  was    after-  377.     and  it  was  hell,  in   that   c           J 

wards  withdrawn.  three   of  the  judges    (Bay ley,  J.  disseuti- 


448  CIVIL  REMEDY— DECLARATION. 

mere   words  without   going    before  a   magistrate  and    perferring 
crimen  that  is  a  charge  of  felony,  without  reference  to  the  precise 

mode. 
[  *449  ]         In  the  case  of  Blizard  v.  Kelly  (c),  it  was  held,  that 

a  court  alleging  that  the  defendant  had  wrongfully,  and 
without  reasonable  or  probable  cause,  imposed  the  crime  of  felony 
on  the  plaintiff,  was  good  after  verdict.  In  the  case  of  Coleman 
v.  Goodwin,  cited  from  the  note  book  of  Gibbs,  L.  C.  J.  the  ninth 
court  of  the  declaration,  on  which  the  plaintiff  had  obtained  a  gen- 
eral verdict,  alleged  that  the  defendant  had  imposed  the  crime  of 
having  been  guilty  of  unnatural  practices  on  the  plaintiff,  and  the 
count  refused  to  arrest  the  judgment,  saying  that  it  must  be  under- 
stood to  mean  an  accusation  before  a  magistrate,  but  that  in  such 
an  accusation  it  was  not  necessary  to  make  use  of  words  of  legal 
charge,  that  is  made  out  afterwards  by  evidence. 

But  if  the  defendant,  before  the  magistrate,  stated  facts,  which 
shewed  the  plaintiff  to  have  been  guilty  merely  of  a  tortious  con- 
version of  the  defendant's  goods,  on  which,  however,  the  magistrate 
erroneously  issued  a  warrant  for  felony,  the  circumstances  will  not 
warrant  an  allegation  that  the  defendant  charged  the  plaintiff  with 

a  felony  (d~). 
[  *450  ]         2dly.     The  determination  of  the  prosecution  *must  be 

shown  by  proper  averments  (e).  Where  the  plaintiff 
has  been  actually  acquitted  by  the  verdict  of  a  jury,  it  ought  to 
be  alleged  that  the  plaintiff  was,  in  due  form  of  law,  acquitted  (/) 
according  to  the  fact.  And  it  would,  it  seems,  be  insufficient  to 
allege  merely  that  the  plaintiff  was  released  and  discharged  from 

ente,)  that  such  a  charge  is  supported  by  rell,  Str.  114.     Parkes  v.  Langley,  Gil.  R. 

evidence,  that  the   defendant  stated  to  the  1G3. 

magistrate  that  he  had  been  robbed  of  cer-         (/  )  The  word  acquitted  must  be  taken 

tain   specified   articles,  and    that  he  sus-  in  its  legal  sense,  viz.   by  a  jury,  2  T.  R. 

pected  and  believed,  and   had  good  reason  231.     Where    the   declaration  alleged  that 

to   suspect   and  believe,  the  plaintiff  had  the  plaintiff,  by   a  jury   of  the  county  of 

stolen  them.  ,  was  duly  and  in  a  lawful  manner  ac- 

(c)  2  B.  &  C.  283.  quitted,  and  by  the  record  it  appeared  that 

(d)  Leigh  v.  Webb,  3  Esp.  C.  167.  1  the  jury  found  the  plaintiff  not  guilty;  and 
Starkie's  C.  67;  and  see  Cohen  v.  Morgan,  upon,  that  verdict  the  judgment  of  the  court 
6  D.  &  R.  8.  was  that  the  plaintiff  should  go  thereof  ac- 

(e)  Willes,  250,  n.  a.  1  DotIg.  215.  10  quitted;  it  was  holden  to  be  sufficient  for 
Mod.  209.  Com.  Rep.  190.  1  Esp.  C.  79.  reddendo  singula  singulis,  the  plaintiff  was 
Bac.  Ab.  Action  on  Case,  II.  Com.  Dig.  duly  acquitted  by  a  jury,  that  is,  found  not 
Action  on  Case,  Conspiracy,  C.  5.  2  T.  B.  guilty  of  the  facts,  and  in  a  lawful  manner 
225—232.  1  Will.  Saund.  228,  9.  Alver-  acquitted  by  the  judgment  of  the  court. 
ton  v.  Tregono,  Yelv.  116.    Lewis  v.  Yar-  Hunler  v.  French,  Willes,  517. 


MALICIOUS  PROSECUTION.  450 

the  said  imprisonment  (,<?•)•  And  care  should  be  taken  to  allege 
the  acquittal  according  to  the  fact.  It'  the  declaration  allege  an 
acquittal  in  Bank,  it  will  aotbe  satisfied  by  proof  of  an  acquittal 

at  Nisi  Trias  (//).     But  if  the  day,  on  which  the  acquit- 
tal is  alleged  'to  haw  taken  place,  be  not  ayorred  by     [  '451  ] 
way  of  description  of  the  record,  a  variance  from  the 
day  of  acquittal,  as  alleged,  will  not  be  material.    Thus  where  the 
declaration  averred  that   afterwards,  to  wit,  on  the  morrow  of  the 
Holy  Trinity,  etc.  the  plaintiff  was  io  due  manner  and  due  course 
of  law  acquitted;  and  by  the  record  of  Nisi   Prius.it  appeared 
that  the  acquittal  took  place  on  Tuesday  next  after  the  end  of  E 
er  Term,  the  proof  was  held  to  be  sufficient  (•*).     !t  would  be  oth- 
erwise, if  the  day    were  so  alleged  as   to    be  descriptive  of  the 
word  (te).     But  if  the  date   he  not  alleged  as  descriptive  of  the 
word,  a  variance  would  not  be  fatal,  though  the  acquittal  were  un-r 
necessarily  alleged  with  a  prout  paiet  per  recordum  I  V). 

An  allegation  that  the  plaintiff  has  been  discharged  by  the  grand 
jury's  throwing  out  the  bill,  sufficiently  .-hews  that  the  prosecution 
has  been  legally  determined  (jri). 

*  Where  the  plaintiff  has  been  discharged,  after  examin-  [  *452  | 
ation  before  a  magistrate,  or  after  such  examination,  the 
prosecutor  has  abandoned  the  charge,  and  where  an  absolute  acquit- 
tal cannot  be  alleged,  it  should  be  alleged  that  the  plaintiff  was  dis- 
charged out  of  custody,  fully  acquitted  and  discharged  of  the  said  sup- 
posed offence,  and  that  the  complaint  and  prosecution  have  been  aban- 
doned by  the  prosecutor,  and  were  wholly  ended  and  determined  (n). 

It  must  lie  alleged  that  the  defendant  acted  falsely  and  malici- 
ously, and  without  any  reasonable  or  probable  cause  in  preferring 
the  charge.  But  it  seems  that  the  word  falsely,  without  maliciously, 
would  suffice  (o). 

{g)  Morgan  v.  Hughea,  -J  T.  El  225.  Phillip*  v.  Shaw,  t  B.  5  A.  1   5,     E  B.  & 

(/,)    Woodford*.  Jithley,  11  East,  608.  A.  984.     Qaddv.l 

(i)   Purctll  r.  Macna  i  ara.  9  East,  167  Rattall  ▼.  Stratton,  1  H.  B.  19. 
•  overruling  the  oase  of  P            Fa  '     ,4T.  (m)  2T.R.232. 
R.  590,  and  Bee  li.  v.  Hucks,  2  Starkie'a  (n)  Bee  Chitty  on   PL                    -'.  p. 
C.  621,  and  R.  ▼.  Payne.   Cor.  Lord  Ken-  lit    Theoi                           ode- 
yon,   West.   Sittings  after  Mioh.  29  G.  J.  termination  of  the  former  pneeoatian  irUl 
Bee  Starkie  on  Evidence,  pt.  iv.  p.  910.  rdiot     Com.  Dig.  Action  on 

(/>•)  9  Bast,  160.     Qret  i   v.  Rtnnelt,  1  the  Case,  Conspire  .                  A!..  Action 

T.  11.  656.  "•  " 

(/)  Stoddart  v.   Palmtr,  8  B.  &  C.  2.  [o)  ]  r   B ■•''u-    IBorr.Wl  1  Wita. 

Co.  Litt.  305.     ll'ii i  v.   Briggt,  1  Lord  232.  B.N. P.  14. 
Bay.  35.     3  Salk.  OGJ.     See  the  case  of 
32* 


452  CIVIL  REMEDY— DECLARATION. 

3dly.  The  damage  resulting  to  the  plaintiff.  This  may  be  either 
to  his  person  by  imprisonment,  to  his  reputation  by  scandal,  or  to 
his  property  by  expense  (p)  ;  or  it  may  consist  in  the  personal  la- 
bor and  trouble  imposed  on  the  plaintiff  in  procuring  his  acquittal 
or  discharge,  and  the  pain  and  anxiety  of  mind  naturally  occasioned 
by  the  pendency  of'  a  criminal  charge. 

(p)  See  1  T.  R.  493.  Gilb.  .Cas.  L.  &  E.  185,  202.  12  Mod.  208.  Chitty  on  Plead- 
ing, vol.  2,  290,  3d  edit. 


CHAPTER  XII. 


Of  the  Dependant's  Plea. 

*Thc  principal  circumstances  of  which  the  defendant  [  *-!■', :;   ] 
may  avail  himself  in  resisting  an  action  for  slander  have 
already  been  adverted  to  (a),  the  technical  mode  of  answering  the 
charge  on  the  record  is  next  to  be  noticed. 

Under  this  division  it  is  to  be  considered — 1st.- In  what  cases  the 
defendant  may  give  his  defence  in  evidence  under  the  general  issue, 
and  in  what  instances  he  is  confined  to  the  plea  of  the  general  issue. 

2dly.  In  what  cases  the  defence  may  be  pleaded  specially,  and  in 
what  cases  it  must  be  so  pleaded. 

3dly.  How  it  should  be  specially  pleaded. 

1st.  The  defence  may  consist  cither  in  a  mere  denial  of  the  fact 
of  publishing  the  injurious  matter  as  alleged,  or  of  the  damage  al- 
leged to  have  resulted  from  it,  when  such  consequential  damage  is 
the  gist  of  the  action,  or  of  matter  of  justification  or 
*excuse,  arising  from  collateral  circumstances,  or  in  [  *454  ] 
some  matter  which  has  discharged  a  previously  existing 
right  of  action.  The  plea  of  the  general  issue,  '  not  guilty,'  obliges 
the  plaintiff  to  prove  all  the  facts,  as  alleged  in  his  declaration, 
which  arc  essential  in  law  to  his  right  to  recover  ;  consequent lv  the 
plea  of  the  general  issue  is  proper  and  sufficient  in  all  cases  where 
the  defendant  means  to  deny  or  disprove  any  fact  essential  to  the 
plaintiff's  ease.  As  where  he  means  to  deny  that  he  Bpoke  the 
words, or  published  the  libel  set  forthin  the  declaration,  or  that  the 
terms  of  the  alleged  slander  were  used  in  the  calumnious  and  ac- 
tionable sense  attributed  to  them  by  the  plaintiff,  or  that  tin'  injuri- 
ous consequence  alleged  by  the  plaintiff  resulted  from  the  act  of 
speaking  or  publishing  complained  of. 

And  he  may  also,  in  all  cases  whereTthe  oca-ion  and  circum- 
stances of  the  speaking  or  other  publication  are  such  as  to  call  <>n 

(a)  Supra,  Ch.  9  to  11  inclusive. 


454  CIVIL  REMEDY— DEFENCE. 

the  plaintiff  to  prove  express  or  actual  malice,  establish  such  occa- 
sion and  circumstances  by  evidence  under  the  general  issue,  and 
the  proof  will  serve  as  a  defence,  unless  it  appear  that  he  acted 
not  honestly  according  to  the  occasion,  but  out  of  actual  malice  and 
ill-will. 

For  in  such  cases,  that  is  where  the  occasion  and  cir- 
[  *455  ]  cumstances  of  the  speaking  the  words,  or  *publishing  the 
libel,  throw.it  on  the  plaintiff  to  prove  a  dishonest  and 
malicious  intention  in  fact,  such  proof  becomes  an  essential  part  of 
the  plaintiff's  case  ;  and,  therefore,  the  evidence  offered  to  rebut  it  is 
properly  admissible,  under  the  plea  of  the  general  issue  [1]. 

So  again,  if  the  immediate  occasion  and  circumstances  of  the 
publication  be  such  as  to  exclude  the  plaintiff's  action  altogether, 
without  regard  to  the  question  of  motive  or  intention,  the  general  is- 
sue is  a  sufficient  plea  ;  for  then  the  defendant  has  not  acted  wrong- 
fully or  maliciously  in  a  legal  sense ;  in  other  words,  the  occasion 
rebuts  the  inference  of  legal  malice  (6),  which  is  essential  to  the  ac- 
tion. 

(b)  It  is  again  to  be  observed,  that  legal  the  existence  or  absence  of  actual  malice 
malice  is  the  same  in  effect  with  the  ab-  was  constituted  the  legal  limit  to  the  ac- 
sence  of  legal  excuse,  where  the  act  itself  tion.  It  would,  in  process  of  time,  be  dis" 
is  wilful,  and  is  unlawful.  And,  therefore,  covered  that  such  a  limit  was  inconvenient 
it  would  be  more  proper  to  say,  that  by  in  itself,  and  not  sufficiently  supported  by 
law  the  particular  occasion  is  a  bar  to  the  principle  to  constitute  the  general  bound- 
action,  than  to  say  that  the  particular  oc-  ary  between  legal  and  illegal  communica- 
casion  rebuts  the  inference  of  malice.  Mai-  tions;  that  it  was  better  that  the  law 
ice,  in  the  legal  sense,  being  but  negatively  should,  in  reference  to  the  occasion,  dis- 
essential  to  the  right  of  action,  it  is  but  tinguish  between  privileged  and,  illegal 
superfluous  and  circuitous  to  say,  that  the  communications,  and  that  on  the  one 
absence  of  a  legal  excuse  is  rebutted  by  the  hand,  some  occasions  ought  to  consti- 
existence  of  a  legal  excuse,  and  so  the  ac-  tute  a>n  absolute  defence,  without  refer- 
tion  is  barred.  It  is  probable  that  at  an  ence  to  motive;  that,  on  the  other,  where 
early  period,  and  before  the  law  itself  had,  the  law  afforded  no  protection,  the  mere 
by  the  aid  of  increased  experience,  de-  absence  of  an  actual  and  deliberate  inten- 
clared  and  defined  the  circumstances  which  tion  to  injure  ought  not  to  be  a  defence  to 
should  afford  a  legal  defence,  but  when,  an  action  for  wilful  defamation.  Malice, 
nevertheless,  it  still  was  necessary  to  lay  however,  was  still  retained  as  a  descriptive 
down  some  limit,  in  order  that  mutual  com-  term,  though  it  had  necessarily  acquired  a 
munications  might  not  be  too  much  fettered,  new  and  technical  sense. 


[1]  The  defendant  may  accordingly,  under  the  general  issue,  show  that  the  alleged 
slander  consisted  in  a  communication  to  the  appointing  power  of  the  state,  in  reference 
to  the  conduct  of  the  plaintiff  as  public  officer,  or  to  officers,  judicatories  or  individuals 
authorized  by  law  to  redress  grievances,  Thorn  v.  Blanchard,  5  Johns.  R.  508;  How- 
ard v.  Thompson,  21  Wendell,  319,  Vander zee  v.  McGregor,  12  Wendell,  545:  O'Don- 
aghue  v.  Mc  Govern,  23  Wendell,  26;  1  Tyler's  R.  164;  2  Id.  129;  2  Serg.  &  Rawle,  23; 


PLEA— GENERAL  ISSUE.  455 

*And,  therefore,  the  defendant  may  shew  that   when 
he  did  the  act  complained  of,  be  was  acting  as  ;t  ju  Ig 
juror,  or  as  a  party  or  witness  in  a  judicial  proeeedi  ig  [1]. 

4  Ed.  420;  8  Pick.  870;  Woodward v.  Lander,  6  Can,  and  Payne,  M8;  /..'  i  f.  Fj/"- 
/ori/,  1  Moody  and  Robinson,  L98;  and  it  seems  he  may  di  I  inplica- 
tion  be  made  to  parties  who  have  no  direct  mea  •  ef.  Fairman  v.  Ives,  5 
Barn,  and  Aid.  647.  Or  in  communications  on  matl  to  per- 
sons iuleresteil  in  the  subject  mutter  of  the  communications,  altboagh  th 
chnnicler  or  credit  of  the  plaintiff,  Spike  v.  Cleyton,  I  1  •" 4  I .  Prosier  v.  Bro- 
mnge,  4  B.  and  C.  247;  Del  any  v.  Jones,  I  Esp  C.  I  II;  .'/  D  r.  <  .  1 
Camp.  C.  267;  Dunman  v.  Btoy,  8  Camp.  C.  260;  Brown  v.  C  2  8tfl  C 
297;  7Wd  v.  Hawkins,  8  Can-,  and  Payne,  88;  IT/itonl  v.  G4'6&«,  8  Neville  an  i  M  i» 
Ding,  467;  Shipley  v.  Tollmnter,  7  Carr.  and  Payi               Coc&ayne  v.  Hodgkituon, 

5  Carr.  and  Payne,  543;  Godson  v.  Flower,  2  li.  an  1  B.  7:  Bradley  v.  Hath,  12  Pick 
163,  or  in  giving  the  character  of  a  servant,  Weaiherstone  v.    //.  1  T.  li.  110; 
Rogers  V.  Clifton,  8  Bos.  and   Pnl    687;    Edmonson  v.    Stevenson,  Bull.  N.  P. 
Hodgson  v.  Scarlett,  1  Barn,  and  Aid.  240,  per  Lord  Ellenborough. 

[1]  The  defendant  may  show  that  the  act  complained  of  wis  done  by  him  as  a  judge, 
a  juror,  a  u-it/iess  or  par/i/  in  the  course  of  a  judicial  proceeding,  whether  civil  i  r  crimi- 
nal. 2  Inst.  228;  2  Roll.  R,  198;  Palm.  Ill;  1  Viner's  Ab.  887;  Cro.  KHz.  280;  Lafre 
v.  King,  1  Saund.  131 ;  or  as  a  member  of  a  military  court  martial  or  court  of  inquiry, 
Jede/  v.  Sir  JoAn  JV/oo/-e,  2  N.  II.  241;  Home  v.  Bentinch;  8  Price,  226. 

So  the  defendant  may,  under  the  general  issue,  show  that  the  publication  was  a  /<  ti- 
tion  to  the  Legislature  for  redress  of  grievances.     See  Hare  V.  Mellen,  8  Lev.  I 

Co.  14,  and  the  resolution  of  the  House  of  Commons  in  England  in  Kemp  v.  Gee,  9 
Feb'y,  8  Will.  iii..  supra  p.  245;  that  the  words  alleged  to  be  libellous  were  spoken  by 
him  as  a  member  of  tin  Legislature  on  the  floor  of  the  House.  1  Black.  Comm.  164; 
King\.  Lord  Mingdon,  1  Esp.  R.  226;  Bex  v.  Creeoy,  1  Maule  &  Sel.  278;  Hast- 
ings v.  Lusk,  22  Wendell  417,  per  Chancellor  Walworth;  4  Mass.  R.  1 ;  8  Pick.  314;  or 
upon  an  application  in  the  usual  course  to  a  magistrate  or  peace  officer  for  process,  Bam 
v.  Lamley,  Hntt.  188.  See  also  Barbaud  v.  Hookham,  6  Esp.  C.  109.  Johnson  v. 
Evans,  8  Esp.  C.  32;  Burton  v.  Worley,  4  Bibb.  38;  and  Saocft  v.  McChesney,  4 
featea  607.  Or  that  the  publication  took  place  in  the  usual  course  of  a  civil  or  criminal 
proceeding  in  courts  of  justice.  1  Roll.  :':;  1  Coke  14;  2  Bnrr.817;  Cro.  J. 
Comm.  126.     10  Mod.  210,  219,  800.    Str.  691.     Dyer  286. 

So,  the  defend  nit  may.  under  the  general  issue,  sh..w  that  the  words  were  bj   ken  by 
him  as  an  advocate  or  counsel  on  the  trial  of  a  cause,  and  that   they   were  relevant   to 
the  matter  in  issne.    Such  seems  ihe  unavoidable  oonolusii  n  to  be  drawn  from  tl 
of  Brooke  v.  Sir  If  nry  Mo  itague,  I  ro.  Jao  90,  and  //  i  5    i  lett,  1  Barn,  and 

Aid  232,  notwithstanding  the  doubts  suggested  by  the  learned  editor.  Supra] 
note  O).  and  infra  page  460,  note  (m). 

Whether,  under  the  plea  of  the  e/«  n  ral  issue  the  defendant  may  show  th  it  the  publi- 
cation is  ,/  true  and  faithful  BOCOUnl  of  a  judicial  pi  acceding,  or  must  p 

specially  to  enable  him  to  give  the  proof,  is,  perhaps,  questionable.     L 
have  doubted  upon  the  question.     Curry   v.    Walton,  1   Bos.  and  Pul.  526;  and  the 
able  author  of  this  most  valuable  treatise  had   seri  us  difficulty  in  making  up  h  i 

in  reference  to  it.     The  most  prudent  course,  theref  re,  as  the  question  .-till  rem 

decided,  probably  is,  to  plead  it  specially;  and  if  it  be  advisable  to  do  B0  where  the  pub- 
lication relates  to  a  judicial  proceeding,  it  dearly  is  so  when  it  relates  to  a  pai liamen- 


456  CIVIL  REMEDY— DEFENCE. 

Under  this  pica  the  defendant  may  also  shew  that  the  publica- 
tion complained  of  was  procured  by  the  contrivance  of  the  plaintiff, 
with  a  view  to  an  action,  for  in  such  case  he.  was  the  voluntary  au- 
thor of  the  mischief  (c). 

He  may  also  shew,  under  this  plea,  that  the  action  has  been  dis- 
charged by  matter  subsequent  as  by  accord  and  satisfaction  (d),  or 

by  a  release. 
■  *4£7  -  *Next,  in  .what  cases  is  the  defendant  confined  to  the 
plea  of  the  general  issue.  Where  the  defendant  seeks 
simply  to  deny  the  fact  of  publishing  the  alleged  slander  or  its  ap- 
plication, or  consequences,  according  to  the  ordinary  and  elemen- 
tary rule  of  pleading,  he  must  confine  his  plea  to  the  general  issue, , 
and  cannot  plead  the  matter  specially,  for  though  it  were  specially 
pleaded,  it  would  still  amount  but  to  the  general  issue. 

So  it  seems  that  in  all  cases  where  the  circumstances  and  occasion 
of  the  speaking  the  words,  or  publishing  the  libel,  do  not  furnish  an 
absolute  bar  to  the  action,  without  regard  to  the  defendant's  motives 
and  intention,  but  merely  throw  it  on  the  plaintiff  to  prove  malice  in 
fact,  the  defendant  cannot  plead  such  occasion  and  circumstances 
specially,  but  must  plead  the  general  issue  ;  for  such  facts  do  not 
supply  an  absolute  bar  to  the  action,  but  merely  a  continual  one,  the 
conditipn  being  the  absence  of  express  or  actual  inalicej  which  is 

(c)   King  v.    Jl'aring   and  ux.  5  Esp.  (d)  Lane  v.  Applegate,  1  Starkie's  C. 

0.  13.     See  also  Smith  v.  Wood,  3  Camp.  97.     The  plaintiff   agreed   to    -waive    his 

323.     Where  the  defendant  having  shewed  right    of  action ,  if   the    defendant  would 

to  the  -witness,  at  the  request  of  the  latter  destroy  certain  documents,  which  the  de- 

a  caricature   of    the   plaintiff,  it  was  held  fendant  accordingly   did,  and  it  was  held 

that  this  was  not  sufficient  to  support  the  that  this  evidence  was   admissible  in  bar 

action.    See  also  Weatherstone  v.  Hawkins,  of  the  action  under  the  general  issue. 
IT.  R.  110  [1]. 

tary  proceeding  ;  the  latter,  it  seems,  not  being  regarded  with  the  same    favor   as   the 
former.     See  supra  p.  261  and  note  (/). 

In  reference  to  the  question  whether,  in  the  case  of  privileged  communications,  it  is 
necessary  to  plead  the  defence  specially,  it  may  be  well  to  add  what  was  said  by  Lokd 
Desman,  0.  J.,  in  the  case  of  Lillie  v.  Prin.  The  defendant,  an  attorney,  was  prose- 
cuted in  an  action  for  a  libel  for  writing  a  letter  to  a  former  client,  warning  him  not  to 
have  any  thing  to  do  with  the  plaintiff.  The  question  submitted  to  the  court  was, 
whether  under  the  new  rules  of  pleading  adopted  in  England  in  Hilary  Term,  4  Wm. 
IV.,  the  defence  of  privileged  communication  should  be  specially  pleaded.  Lord  Den" 
man  said,  "  We  are  all  of  opinion  that  this  defence  does  not  require  to  be  pleaded 
specially.  It  goes  to  the  very  root  of  the  action.  It  shows  the  party  not  guilty  of  malice, 
and  consequently  it  is  open  to  him  without  having  pleaded  it."  5  Adolph.  and  Ellis 
645;  1  Neville  and  Perry  16;  and  2  Harr.  and  Woll.  R.  645,  s.  c.  See  also  what  is 
said  by  Chancellor  Walworth  on  this  question  in  Hastings  v.  Lusk,  22  Wendell  416. 

[1]  See  note  [1]  p.  208,  supra. 


FLEA— GENERAL  ISSUE.  457 

always  a  question  for  the  jury.     Such  facts,  therefore,  cannot  be 
pleaded  specially,  for  if  tl  I  effectwould  be  to  take  away 

that  question  offset  from  the  consideration  of  the  jury, 
upon  which  the  whole  case  'depended  («)  the  decision    [  *468  ] 

of  which  lay  within  their  own  peculiar  province. 

Such  a  plea  would  be  bad  in  point  of  Law,  in  reference 
to  the  ordinary  and  elementary  principles  of  pleading;  for  every 
plea  ought  to  disclose  such  facte  as,  if  they  be  true  and  Btand  un- 
contradicted and  unqualified,  supply  an  answer  to  the  action.  But 
in  the  class  of  cases  alluded  to,  all  the  facts  might  be  true,  and  . 
by  reason  of  the  existence  of  express  malice  they  would  afford  no 
answer  to  the  action. 

It  seems,  therefore,  to  be  clear  in  principle,  that  whenever  the 
occasion  and  circumstances  of  the  Bpcaking  or  publishing  do  not 
furnish  an  absolute  bar  to  the  action,  but  merely  throw  it  on  the 
plaintiff  to  prove  malice  in  fact,  the  defence  cannot  be  specially 
pleaded,  but  must  be  given  in  evidence  under  the  general  issue  (/). 

If  the  repetition  of    slander,  from  the  report  of   another,  allbrds 
not  an  absolute  and   peremptory  bar  to  the  action,  but 
'merely  a  qualified  one,  dependent  on  the  absence  of  ex-      [  *4o9  ] 
press  malice,  it  seems  to  be  very  doubtful  whether  such 
a  defence  can  be  specially  pleaded  (g).  [1]. 

Where  the  action  is  brought  for  claiming  title  to  an  estate,  by 
means  of  which  the  plaintiff  is  prevented  from  selling  or  letting  it, 
and  the  declaration  alleges  that  the  defi  odant  asserted  a  false  title. 
knov:ii/g-  it  to  be  false ,  if  the  defendant  has  in  fact  any  color  of 
claim,  he  should  plead  the  general  isMie  ;  by  which  means  the  plain- 
tiff will  lie  obliged  to  prove, under  the  general  issue,  that  the  defen- 
dant knew  it  to  be  false  (//.)  |   and  the  fact  of  knowledge   cannot,  it 

seems,  be  traversed  in  pleading  (i). 

(r)  Abbott,  L.  C.  J.  in  the  c  be  bound  to  prove  under  the 

v.  Waller,  I  1!.  &  A.  605,  iutimated,  that  and  it  would  confess  and  avoid. 
special    matter  of   defence  could   n"t   be        (/)  Bee  Lewie  v.    Waller  x   \  B.  ft  A. 

pleaded  in  lor,  unless  it  supplied  an  an-  I 

Bwer  to  the  charge  of  malice     If  the  plea        [g)  See  Lewis  t.    WalUr,  4  D 

were,  in  odd  tion  to  tic  disclosure  i  f  so  ih  6  I  •.  supi  i 
facts  a*  rendered  proof  <>f   actual  malice        Co  -  I    - 

essential,  also  to  negative  the  existence  of        («)  4  Co.  ia     Ci  Mj 

malice,  it  would  he  demurrable;  for,  con.  bo  held  because  there  could  bo  no  proper 

torary  to  the  first  oiles  of  pleading,  it  would  venue. 
both  deny  that  which  the  plaintiff  would 

[1]  Sec  note  [1]   p.  o  10  supra. 


459  CIVIL  REMEDY— DEFENCE. 

As  the  action  for  a  malicious  prosecution,  is  an  action  on  the  case 
in  which  the  plaintiff  is  bound  to  allege  all  the  circumstances  of  the 
prosecution,  and  that  it  was  instituted  maliciously  and  without  pro- 
bable cause,  the  proper  plea  in  bar  is  the  general  issue. 

2dly.  On  the  other  hand,  it  seems  to  be  clear,  that  in  all  cases 
where  the  occasion  or  circumstances  attending  the  speak- 
[  *4G0  ]  ing  or  publishing,  *furnish  an  absolute  bar  to  the  action, 
the  defence  may  be  specially  pleaded  ;  for,  in  all  such 
cases,  the  plea  admits  the  facts  alleged  by  the  plaintiff,  but  shews, 
by  the  allegation  of  other  additional  facts,  that,  upon  the  whole  of 
the  case,  the  plaintiff  is  not  entitled  to  recover :  in  other  words,  the 
defendant  by  his  plea  confesses  and  avoids  the  statement  made  by 
the  plaintiff;  and,  therefore,  he  may  plead  (j  )  specially  that  the  im- 
putation was  true,  that  the  words  were  spoken,  or  the  alleged  libel 
published  by  the  defendant,  as  a  member  of  either  house  of  parlia- 
ment, in  the  course  of  his  parliamentary  duty  (&).  By  a  judge  act- 
ing in  his  judicial  capacity  (/).  By  an  advocate  in  the  magagement 
of  a  cause  where  they  are  pertinent  to  the  issue,  and  have  been  sug- 
gested by  the  client  (m).  By  a  party  to  a  parliamentary  or  judicial 
proceeding,  according  to  the  ordinary  course  of  such  proceed- 
ings (n). 

So,  the  defendant  may  not  only  by  means  of  a  special 
[  *461  ]  plea  justify  his  act,  but  he  may  also  show  by  *extrinsic  mat- 
ter, that   the  words  or  alleged  libel  are  not  in  their  own 
nature  actionable. 

For  although  such  a  defence  involves  a  denial  of  that  which  the 
plaintiff,  under  the  plea  of  the  general  issue,  would  be  bound  to 
prove,  that  is,  that  the  words  or  libel  were  really  used  and  applied 
in  the  injurious  sense  and  manner  alleged  by  the  plaintiff;  yet,  it 
admits  the  speaking  or  publishing  the  words  or  libel  stated,  and  sup- 
plies facts,  which,  if  true,  show  that  the  matter  published  is  not  in 
its  own  nature  actionable  ;  and  consequently,  renders  the  allegations 
of  the  plaintiff,  as  to  the  motives  of  the  defendant,  and  the  applica- 
tion of  the  matter  published,  wholly  immaterial  (o). 

(j)  Such  a  defence,   as   will  be  seen         (n)  Lake  v.   King,  1   Saund.   132.     3 

must  be  pleaded  specially;  see  below  [1].  Lev.  169. 

(/<•)   1  Esp.  C.  226.     1  W.  &-M.  st.  2.  c.         (o)  If  the  fact  be  justified,  the  motives, 

2.     R.  v.  Crcevy,  1  M.  &  S.  27-3.  intention    and    manner    are    immaterial, 

(/)  2  N.  R.  141.  Burr.  807. 

(?n)  Cro.  J.  90.    Poph.  69.     See   Scar- 
lett v.  Hodgson,  1  B.  &  A.  232. 


[1]  See  note  [1]  p.  456,  supra. 


SPECIAL  PLEA.  401 

The  general  rule,  as  laid  down  in  CromwelV*  case  |  p),  is,  that 
the  defendant  shall  never  be  put  to  the  general  issue  when  lie  con- 
fesses the  words  and  justifies  them,  or  confesses  the  words,  and  in- 
special  matter  shows  that  they  arc  not  actionable. 

And  therefore  it  has  been  held  that,  in  an  action  for  calliu 
plaintiff  a  murderer,  it  may  be  pleaded  that  the  word  Was  used  in 
the  course  of  a  conversation  about  unlawful  hnnting,  and 
that  the  words  merely  imported  that  the  plaintiff  was  *a     [  *4«'>J  ] 
murderer  of  hares  (q).     So,  where  the  plaintiff  declared 
upon  an  imputation  of  an  unlawful  maintenance,  it  was  held  that  the 
defendant  might  justify  by  showing  that  the  words  were  used  in  ref- 
erence to  a  lawful  maintenance  (r). 

So,  in  the  case  of  Kinnersley  v.  (1<><>per  (s).  The  plaintiff  de. 
clared  that  he  had  taken  an  oath,  which  was  recorded  in  the  court 
of  the  (iuildhall,  in  a  judicial  proceeding;  and  that  the  defendant 
speaking  of  that  oath,  had  said,  that  he  had  sworn  falsely.  The  de- 
fendant, in  his  plea,  denied  that  any  such  oath  had  been  taken  :  and 
the  plaintiff  demurred,  on  the  ground  that  the  taking  the  oath  was 
but  conveyance  to  the  action,  and  not  traversable;  and  secondly, 
that  the  plea  was  bad,  since  it  amounted  to  the  general  issue.  But 
the  justices  were  of  opinion  that  the  matter  was  traversable,  since 
the  action  was  grounded  upon  it. 

In  the  case  of  Lord  Cromwell  v.  Denny  (t),  the  plaintiff  declared 
in  scandalum  magnatum  against  the  defendant,  for  having  charged 
him  with  liking  those  who  maintained  sedition. 

The  defendant  pleaded  that  he  was  vicar  of  Northlin- 
ham,  which  was  a  benefice  with  the  'cure  of  souls:  and     [    '  163  J 
that  the  plaintiff  procured  J.  T.  and  J.  G.  to  preach  sev- 
erally in  the   church  of  Northlinham  ;  who,  in    their  sermons,  in- 
veighed against  the  Book  of'Common  Prayer,  which  was  established 
by  the  Queen  and  the  whole  parliament  in  the  first  year  of  her  r 
and  affirmed  it   to  be  superstitious  and   impious;  upon   which   the 
plaintiff  and  defendant,  Bpeaking  in  the  said  church  of  these  ser- 
mons, because  the  vicar  knew  that  they  had  no  licence,  nor  were 
authorized  to  preach,  when  they  were  ready  to  preach,  before  their 
sermons,  forbade    them,  but    they,  by    the    encouragement    of    the 
plain  ti  if,  proceeded,  when  the  plaintiff  said  to  the  defendant,"-  Thou 
art  a  false  varlct,  I  like  thee  not."     To  which  the  vicar  said,  "  It 

(/»)  4  Rep.  14.     Pooh.  66.  (s)  Cro.  E.  168.     4  Rep.  14. 

(?)  4  Rep.  14.  (0  4  Rep.  14. 

(r)  Cro.  Jac.  00. 

Vol.  I.  33 


463  CIVIL  REMEDY— DEFENCE. 

is  no  marvel  that  you  like  not  of  me,  for  you  like  of  these  (innuendo 
the  said  J.  T.  and  J.  G. )  that  maintain  sedition  against  the  Queen's 
proceeding."  It  was  moved,  by  the  plaintiff's  counsel,  that  the 
plea  was  bad,  since,  if  the  matter  contained  in  it  amounted  to  a  jus- 
tification, then  upon  a  dialogue  between  the  parties,  the  defendant 
was  not  guilty,  and  that  he  ought  to  have  pleaded  so,  and  given  the 
matter  in  evidence.  But  the  court  held,  that  the  defendant  had 
done  well  to  show  the  special  matter  by  which  the  sense  of  the  word 
sedition  appears,  upon  the  coherence  of  all  the  words,  not 
[  *464  ]  *to  mean  any  violent  and  public  sedition,  as  it  had  been 
described  to  mean,  and  as  ex  vi  termini  the  word  itself 
imports  (u). 

It  seems,  also,  that  the  defendant  may  either  plead,  or  show  by 
evidence  on  the  general  issue,  that  the  right  of  action  which  once 
existed  has  been  discharged  as  by  a  subsequent  release. 

It  seems  also  that,  in  general,  any  matter  which  in  law  discharges 
a  right  of  action,  for  any  slander  or  libel,  may  be  either  given  in 
evidence  under  the  general  issue,  or  may  be  specially  pleaded. 

Thus  the  defendant  may  give  accord  and  satisfaction  in  evidence 
under  the  general  issue  (x). 

So  the  defendant  may,  by  his  plea,  disclose  special  mat- 
[  *465  ]    ter  which  shows  that  the  plaintiff  has  *sustained  no  dam- 
age from  the  words,  provided  the  special  damage  be  the 
gist  of  the  action. 

Where  the  plaintiff  alleged  that  by  reason  of  the  speaking  of  the 
words  he  had  lost  his  marriage  with  J.  S.,  the  defendant  pleaded 
that  J.  S.  was  the  aunt  of  the  plaintiff  (?/)  :  but,  in  such  a  case,  the 
plea  of  wow  damnificalus  would  be  bad  (s). 

In  the  next  place  there  are  some  grounds  of  defence  which  must 
be  pleaded  specially,  and  which  cannot  be  disclosed  in  evidence  un- 

(u)  See  also  Brittrklge's  case,  4  Co.  18.  plaintiff  might  have  retained  his  verdict; 

The  words  set  out  in  the  declaration  were,  but   had  the  plaintiff   omitted   the  latter 

Mr.   Brittridge  is  a  perjured  old  knave,  words,  the   defendant  might  have  shown 

and  that  is  to  be  proved  by  a  stake  parting  the  context  by  his  plea,  and  so  have  de- 

the  lands  of  H.  Martin   and  Mr.   Wright;  featcd  the  action. 

after  a  verdict  for  the  plaintiff,  the  defend-  (x)  Lane  v.  Jlpplegate,  1  Stnrkie's   C# 

ant  succeeded  in  arresting  the  judgment;  97.     But  the  statute  of  limitations  must, 

for  though  it   was  held  by  the  court,  that  as  will  be  seen,  be  pleaded, 

the  words  in   italics  were  actionable,  they  (y)  Dyer  26.     It  has  been  said,  that  the 

were  of  opinion,  that  their  force  was  ex-  defence  would  not  be  admissible  under  the 

plained  away  by  the  latter,  which  showed  plea  of  the  general   issue.     B.   N.   P.  7. 

that  no  judicial  perjury  was  intended,  so  tamen  qu. 

that,  had  the  latter  words  been  omitted  the  (z)   lb. 


Sl'F.CIAL   I'LKA.  465 

der  the  general  issue,  even  although  they  afford  a  conclusive  bar  to 
the  action. 

In  the  first  place,  whore  the  defendant  means  to  insist  that  the 
imputation  is  true,  he  must  as  wrll.it  Beems,  upon  general  principles 
of  Law,  as  on  considerations  of  policy  and  convenience,  plead  such 
defence  specially  [a  «]. 

On  legal  principles  he  musl  do  so,  for  the  fact  whioh  supplies  the 
justification  is  collateral  to  the  cause  of  action,  and  the  proof  of  it 
does  not  contradict  or  repel  any  matter  which  the  plaintiff  would  be 
bound  to  prove  ( a  ). 

•On  grounds  of  convenience  and  policy,  it  is  obviously        *466  ] 
necessary,  that  a  party  charged  with  the  commission  of 
an  illegal  or  immoral  act,  should  be  apprized,  by  means  of  a  special 
plea,  of  the  nature  and  circumstances  of  the  charge,  in  order  that 
he  may  be  prepared  to  meet  it,  and,  if  it  be  unfounded,  to  refute  it. 

The  rule  of  law  upon  this  head  has  long  been  settled,  that  the  de- 
fendant, if  he  mean  to  rely  upon  the  truth  of  that  which  he  has  pub- 
lished, either  in  bar  of  the  action  or  in  mitigation  of  damages,  must 
plead  it  specially  [1]. 

Formerly  a  distinction  was  made  in  this  respect  between  wordB 
imputing  an  offence  generally,  and  such  as  charged  a  particular  and 
specific  one. 

In  the  case  of  Smithy.  Richardson  (&),  the  twelve  judges  were 
unanimously  of  opinion,  that  where  the  words  import  a 
general  "felony,  as  "  Thou  art  a  thief,"  or  "  Thou  stolest  [  *4G7    ] 
a  horse,"  or  any  other  thing  not  specifying  the  person 

[a  a]  So  the  defendant  is  not  at  liberty  in  principle,  essential  to  the  right  of  action, 

to  give  evidence  in   mitigation  of  damages  This  is,  however,  a  subject  of  mere  specu- 

of  any  fact  which   would    lie   evidence   to  latiou;  for  undoubtedly,  the   rule   is   per- 

provc  a  justification  of  any  part  of  the  libel,  fectly  well  settled  on  the  grounds  of  pub- 

for  he   ought   to  justify   as  to  that   part,  lie  policy,  that  such  a  justification  mast  be 

Vessey  v.  Pike,  8  Carr.  and  Payne  612,  pleaded;  and  even  independently   of  that 

(«)  Sec   Smith    v.    Richardson,    Willes  rule,  the  proof  of  the  truth  of  the  charge 

20.    It  seems,  however,   to  be  very  ques-  would   lie  on   the  defendant,   for  the  law 

tionable,    whether   the   rule   does  not  rest  would    presume   the   plaintiff's    innocence 

better   upon   the  foundation  of  policy  and  till  the  contrary  appeared.     Vide  supra,  p. 

convenience,   than   on   the  strict    rule   of  229,  and  p.  ■">.  in  the  note, 
pleading;  in  other   words,    it    is   doubtful         (/>)   Willes  20. 
whether  the  falsity  of  the  charge   is   not, 

[1]  This  doctrine  is  fully  recognized  in  Andrew  v.  /',.•  />,:,/,  11  Johns.  11.  38; 
Shephard  v.  Merrill,  13  Id.  475;  Van  Ankin  v.  Wutfall,  14  I  1.  288;  Else  v.  Ferris, 
Anthon's  N.  P.  23;  and  B<ims  v.  Webb,  1  Tyler  17.  As  to  giving  tlic  truth  iu  evi- 
dence in  mitigation  of  damages,  see  page  233  supra,  note  [1]. 


467  CIVIL  REMEDY— DEFENCE. 

from  whom  or  when  and  where  it  was  stolen,  the  defendant  ought 
not,  upon  the  general  issue,  to  be  allowed  to  give  the  fact  in  evi- 
dence to  mitigate  damages.  The  words  in  .the  principal  case  were, 
"  John  Smith  is  a  rogue,  and  hath  stolen  my  beer  ;  John  Smith  has 
robbed  me  of  my  beer  ;"  and  eight  of  the  judges  were  of  opinion, 
that  in  no  case  whatever  where  the  words  imported  felony  or  treason, 
such  evidence  ought  to  be  admitted  on  not  guilty  pleaded  ;  but  four 
were  of  opinion  that  it  might,  where  the  words  imported  a  particu- 
lar felony. 

But  in  the  case  of  the  Bishop  of  Salisbury  v.  Nash,  cited  in  the 
above  case,  which  was  an  action  for  saying  of  the  plaintiff,  "  He 
preacheth  nothing  but  lies  in  the  pulpit,"  the  defendant  pleaded  not 
guilty,  and  his  counsel  offered  to  give  evidence  of  the  truth  of  the 
words  in  mitigation  of  damages  ;  but  Lord  Macclesfield  refused  to 
admit  it  with  great  indignation. 

Where  a  particular  offence,  not  capital,  was  charged  (c),  evidence 
of  the  truth  was  allowed,  under  the  general  issue. 

But  in  the  case  of  Underwood  v.  Parkes,  the  defend- 
[  *468  ]  ant  pleaded  not  guilty  (d,)  and  offered  *to  prove  the 
words  to  be  true  in  mitigation  of  damages,  which  the 
chief  justice  refused  to  permit,  saying,  that  at  a  meeting  of  all  the 
judges  upon  a  case  that  arose  in  the  Common  Pleas,  a  large  major- 
ity of  them  had  determined  not  to  allow  it  for  the  future,  but  that  it 
should  be  pleaded,  whereby  the  plaintiff  might  be  prepared  to  de- 
fend himself,  as  well  as  to  prove  the  speaking  of  the  words.  That 
this  was  now  a  general  rule  amongst  them  all,  which  no  judge  would 
think  himself  at  liberty  to  depart  from  ;  and  that  it  extended  to  all 
sorts  of  words,  and  not  barely  to  such  as  imported  a  charge  of 
felony. 

Where  the  justification  is  that  the  defendant  has  published  no  more 
than  a  true  and  faithful  account  of  a  judicial  proceeding-,  consider- 
able doubt  has  been  entertained  upon  the  question,  whether  the  de- 
fence must  be  pleaded  specially,  or  whether  it  be  available  under 
the  general  issue ;  and  the  point,  though  it  be  exceedingly  impor- 
tant, has  not  yet  been  finally  decided  [1.] 

An  action  was  brought  against  the  editor  of  the  Times  news- 
paper (e,)  for  a  libel  on  the  plaintiff;  the  publication  complained 

(c)  B.  N.  P.  7.  («)   Curry  v.  Walter,  1  B.  &  P.  525. 

(rf)  Str.  1200. 


[1]  See  note  [1]  page  456,  supra. 


SPECIAL  PLEA.  4G8 

of,  purported  to  be  an  account  of  an  application  to  the  Court  of 
King's  Bench,  for  an  information  against  the  plaintiff 
and  Mr.  Bingham,  both  justices  of  the  'peace  for  Hump-  [  *4G9  ] 
shire,  for  refusing  to  License  an  inn  at  Gosport.  The  de- 
fendant pleaded  the  general  issue;  and  al  the  trial,  after  the  plain- 
tiff had  proved  the  publication  of  the  paper  by  him,  a  person  whom 
he  employed  to  collect  Legal  intelligence  for  the  nse  of  his  paper, 
was  called,  in  order  to  prove  that  the  report  was  a  tin.:  and  faithful 
account  <<{'  what  had  passed  in  the  Court  of  King's  Bench  upon  the 
motion,  [t  was  objected  on  the  other  side,  that  the  defence  ought 
to  have  been  put  upon  the  record,  and  could  not  be  given  in  evi- 
dence under  the  general  issue.  The  objection,  however,  was  over- 
ruled by  Eyre,  C.J.  and  the  jury  found  a  verdict  for  tin-  defendant. 
Afterwards  a  motion  was  made  in  arrest  of  judgment ;  one  ground 
for  which  was,  that  the  matter  proved  by  the  defendant,  at  the  trial, 
had  been  improperly  received  in  evidence  under  the  general  issue, 
and  ought  to  have  been  pleaded  in  bar  to  the  action.  After  argu- 
ment, the  court  doubted  upon  this  point,  the  case  stood  over,  and  no 
judgment  was  ever  given. 

Without  presuming  to  venture  an  opinion  on  so  important  a  point 
which  remains  still  undecided,  it  may  be  observed,  that  the  question 
seems  to  resolve  itself  mainly  into  the  consideration,  whether  the 
courts  will  deem  it  proper,  on  principles  of  convenience,  to  adhere 
to  the  ancient  rule  of  law,  according  to  which  it  seems 
•that  such  a  collateral  ground  of  defence  ought  to  be  spe-  [  *470  ] 
cially  pleaded,  or  will  relax  the  rule  in  the  present  case 
as  has  been  done  in  many  others. 

In  the  first  place,  the  defence  is  founded  upon  considerations  of 
external  policy,  for,  when  it  has  been  established,  it  does  nut  destroy 
or  contradict  any  matter  which  is  essential  to  the  cause  of  action, 
or  which  the  plaintiff  would  lie  bound  to  prove  under  the  general 
issue.  Such  a  defence  admits  a  publication  of  noxious  matter,  and 
the  malice  of  the  publisher,  however  inveterate,  is  wholly  imma- 
terial. 

According,  therefore,  to  the  general  and  elementary  principles  of 
pleading,  a  justification  of  this  nature,  which  confesses  the  facts  al- 
leged by  the  plaintiff,  ami  avoids  them  by  additional  matter,  ought 
to  be  pleaded  specially  (  /.) 

Such  a  defence  differs  most  essentially  from  all,  where  the  occa- 
sion of  speaking  or  publishing  enures,  prima  facie,  as  a  protection 

(/)  Sec  Smitli  v.  RichardtOH,  Willes,20. 

33* 


470  CIVIL  REMEDY— DEFENCE. 

to  the  defendant,  and  throws  it  on  the  plaintiff  to  prove  actual  mal- 
ice, for  then,  as  has  already  been  observed,  the  defence  not  only  may, 
but  must  be  offered  in  evidence  under  the  general  issue,  and  cannot 
be  pleaded  specially,  because  there  the  occasion  does  not  supply  an 
absolute  bar  to  the  action  ;  the  defence  in  question,  on 

*471  ]  *the  other  hand,  operates  as  a  peremptory  bar  to  the  ac- 
tion, and,  at  all  events,  may  be  pleaded  specially. 

On  the  contrary,  such  a  defence  resembles  a  justification  founded 
on  the  truth  of  the  publication,  for  though  the  defendant  docs  not 
allege  that  the  fact  imputed  was  true,  yet  he  insists  that  his  state- 
ment was  true,  namely,  that  the  imputation  was,  in  fact,  part  of  a 
judicial  proceeding,  which  he  has  faithfully  reported.  In  the  one 
case,  as  well  as  the  other,  the  defence  is  founded  on  considerations 
of  extrinsic  policy. 

It  does  not  indeed  by  any  means  necessarily  follow,  that,  because 
such  a  defence  may  be  pleaded  specially,  it  must,  therefore  be  plead- 
ed specially ;  inasmuch  as  the  general  rule  of  pleading  has  been 
much  relaxed,  and  many  exceptions  have  been,  from  time  to  time, 
introduced.  Still  the  question  is,  whether  the  case  be  an  exception, 
or  not,  to  the  general  rule,  or  whether,  on  grounds  of  policy  and 
convenience,  it  ought  to  be  an  exception,  and  the  onus  of  proving 
the  affirmative  clearly  lies  on  those  who  assert  it. 

In  the  case  of  Curry  v    Waller  (#•),  though  the  evidence  was 

admitted  at  Nisi  Prius,  under  the  general  issue,  yet  the  court  were 

afterwards  equally  divided  upon  the  subject,  and  no  judgment  was 

ever  given.     This  case  therefore  supplies  *no  authority 

"  *472  ]     *whatever  for  relaxing  the  general  rule  of  pleading  in 

such  cases. 

The  practice,  on  the  contrary,  has  been,  with  a  few  exceptions, 
to  plead  such  a  defence  specially  (//)  [1]. 

Considerations  of  policy  and  convenience  concur  with  the  ordinary 
practice.  It  frequently  happens,  where  such  a  defence  is  set  up, 
that  the  whole  question  turns  upon  legal  points,  which  are  decided 
with  greater  convenience,  with  more  expedition,  and  with  less  ex- 
pense to  the  parties,  when  raised  upon  the  face  of  the  record  by 
the  pleadings,  than  where  the  defence  is  reserved  for  the  trial,  and 
then  for  the  first  time  disclosed  ;  and  it  would  frequently  be  highly 

(g-)  1  B.  &  P.  525.  -which  was  previous   to  Curry  v.  Walter, 

{h)  See  Astley  v.    Yonge,   Burr.    807,     and  see  Stiles  v.  JVokes,  7  East,  493. 

[1]  See  also  Lewis  v.  Clement,  3  Barn.  &  Aid.  702,  tried  in  1818,  in  which  a  spe- 
cial plea  was  interposed;  and  Flint  v.  Pike,  4  Barn.  &  Cress.  473. 


SPECIAL  PLEA.  472 

inconvenient  that  it  should  be  left  to  the  court  and  jury,  at  Nisi 
Prius,  to  apply  the  report  to  the  alleged  libel,  and  to  distinguish 
between  what  was  justifiable  and  what  was  not  BO  (0- 

'Where  the  defence  is,  that  the  defendant  merely  re-    [  '473  ] 

pealed  that  which  he  heard  from  another,  and  that  he 
divulged  his  authority  at  [the  time  of  repetition,  the  ordinary 
course  has  been  to  plead  the  justification  specially  (Af).  Audit 
has  been  held  that,  without  such  a  plea,  the  feci  is  not  available, 
even  in  mitigation  of  damages (Oi  :im^  therefore,  it  would  not  bo 
safe  to  trust  such  a  defence  to  the  general  issue  [1].  It  Beema 
however  to  be  doubtful,  whether  such  a  plea,  unless  it  disclosed 
circumstances  which  rendered  the  question  of  actual  malice  imma- 
terial, would  be  good  in  law,  as  the  effect  would  lie  to  withdraw 
the  question  of  actual  malice  from  the  consideration  of  thcjur\<  /// ). 

By  the  stat.  21  J.  1,  c.  16,  s.  3,  it  is  enacted,  that  all  actions  on 
the  case  (other  than  for  slander)  shall  be  commenced  and  sued 
within  six  years  next  after  the  cause  of  such  action  or  suit,  and  not 
after.  And  the  said  action  on  the  case  for  words  within  two  years 
after  the  words  spoken,  and  not  after.  It  has  been  held,  under  this 
statute,  that  the  latter  limitation  applies  to  words  in  themselves  ac- 
tionable only,  and  not  to  cases  where  the  special  damage 
(n)  is  the  gist  of  *the  action,  nor  to  written  slander,  *474  ] 
and  it  has  been  decided  that  cases  of  scandalum  magna- 
tum  are  not  within  the  latter,  though  they  are  within  the  former, 
limitation  (o). 

It  seems  to  be  now  fully  settled,  that  if  the  defendant  mean  to 
avail  himself  of  this  statute  {p),  he  must  in  all  cases  plead  it. 

Where  the  words  are  actionable,  the  time  begins  to  reckon  from 
the  speaking  of  the  words,  but  where  the  special  damage  is  the 
gist  of  the  action,  it  seems  that  it  would  not  be  sufficient  for  the 
defendant  to  aver,  in  his  plea,  that  he  did  not  speak  the  words 

(t)  See  7  East,  403,  where  it  was  hell,  and   would  not   permit   the  defendant  to 

that  where  part  of  a  puhlieation  consists  of  amend. 

a  report  of  judicial   proceedings,  and  the  (/>•)    Woolnolh  \    . '.'                  ! 

rest  of  comment,  since  a  separation  is  ne-  (/)  Mills  v.  Spencer,  Bolt's  D. 

cessary,  for  the  purpose  of  defence,  the  de-  (;»)  Bee  4  15.  and  A.  605,  supra,  4">7. 

ifandant   ought    to    take    upon   himself  the  (n)  G   Bac.    Ab.    241.     fro.    Car.    193. 

burden   of  making   it,   in  order   that   the  Salk  "206.     1  Sid.  95. 

court  may  see  what  parts  he  means  to  jus-  (o)  Cro.  Car.  535. 

tify.     And  the  defendant  not  having  done  (»)  2  Will.  Saund.  G3,  a. 
so,  the  court  held  that  the  plea   was   bad, 

[1]  See  note  [1],  p.  340,  supra. 


474  CIVIL  REMEDY— DEFENCE. 

within   six   }Tcars,  because,  though  that  was  the  fact,  the  special 
damage,  which  is  the   cause  of  action,  may  have  arisen   within  the 
six  years  ;  he  ought,  therefore,  to  plead  that  the  cause  of  action 
did  not  accrue  within  the  limit. 

But  where  special  damage  is  consequent  upon  actionable  words, 
it  is  (as  it  is  said)  sufficient  to  plead  that  the  defendant  did  not 
speak  the  words  within  the  limited  time. 

4thly.  How  special  matter  must  be  pleaded. 

Observations  upon  the  manner  of  pleading  relate  to  the  plea  of 
justification  generally,  to  particular  pleas,  or  to  the  joinder  of  dif- 
ferent pleas. 
[  *475  ]        *1.  To  the  plea  of  justification  generally. 

The  plea  of  justification  in  general  must  confess  the 
publication  as  laid  down  in  the  declaration,  otherwise  it  will  be  bad 
on  demurrer  (q~)  ;  and  this  is  an  immediate  consequence  resulting 
from  the  great  rule  of  pleading,  which  requires  the  party  pleading 
either  to  confess  the  previous  matter,  and  avoid  it,  or  to  traverse  it. 

In  Johns  v.  Gittens  (r),  the  words  laid  in  the  declaration  were, 
"  Thou  hast  played  the  thief  with  me,  and  hast  stolen  my  cloth  and 
a  half  yard  of  velvet."  The  defendant  pleaded  that  the  plaintiff 
was  his  tailor,  and  that  upon  such  a  day  he  delivered  to  him  a  yard 
and  a  half  of  velvet,  to  make  him  a  pair  of  hose,  and  he  made  them 
too  straight ;  by  reason  whereof  he  spoke  these  words,  "  Thou  hast 
stolen  part  of  the  velvet  which  I  delivered  you,"  denying  that  he 
spoke  any  words  aliter  vel  alio  modo. 

The  plaintiff  demurred,  and  it  was  held  that  the  plea  was  bad, 
for  not  confessing  the  words  laid  in  the  declaration  (s). 
[  *476  ]  *If  the  defendant  justify  specially,  it  will  not  be  neces- 
sary for  him  in  his  plea  to  deny  the  innuendos  and  epi- 
thets contained  in  the  declaration ;  for  if  the  fact  be  justified  (£), 
the  motive,  intention,  and  manner  are  immaterial.  Unless,  from  the 
particular  occasion  of  speaking  the  words,  the  day  or  the  place  be- 
come material,  the  plea  should  adopt  the  day  and  the  place  stated 
in  the  declaration  without  a  traverse  ;  but  when  they  become  mate- 
rial, and  differ  from  those  stated  in  the  declaration,  the  plea  should 

(q)  Jon.  307.     Cro.  Eliz.  153.     A  plea  held  that  the  defect  was  cured.     Cro.  Car. 

of  justification  will  sometimes   cure  a   de-  288. 
fective  declaration.     The  words  were  "  He         (r)  Cro.  Eliz.  239. 

is  forsworn,"  and   there  was  no  averment         (s)  See  also  Cro.  Eliz.  153.  Bellingham 

to  connect  them  with  a  judicial  oath;  but  v.  My  nor  s. 
the  plea  averring  that  the  words  were  spo-  (0  Burr.  807. 

ken  in  reference  to  a  judicial  oath,  it  was 


SPECIAL  PLEA.  47G 

traverse  the  speaking  of  the  words  on  the  clay  or  at  the  place  laid 
in  the  declaration.  Thus,  if  the  plaintiff  declare  of  wards  spoken 
at  I>.,  in  the  county  of  Salop,  and  the  defendant  mean  to  justify  the 
publishing  them  in  a  judicial  proceeding  at  Westminster,  he  should 
traverse  (ti)  the  publishing  them  at  B.,  in  Salop,  at  any  time. 

2.  Tin:  special  plea  of  justification,  grounded  upon  the  truth  oi 
the  publication,  may  be  considered, firsts  with  reference  t<>  the  mat- 
ter contained  in  the  plea;  and,  secondly,  with  regard  to  the  charge 
complained  of  in  the  declaration. 

The  same  degree  of  certainty  and  precision  are  required  in  this 
plea  as  are  requisite  in  an  indictment  or  information. 

*In  Wyldv.  Cookman  (as),  the  words  were,  "Thou  "ITT 
wast  forsworn  in  such  a  leet,  on  such  a  day."  The  de- 
fendant pleaded  that  the  plaintiff  the  same  day  was  sworn  with 
others  before  the  steward,  to  present,  &e.  and  that  they  presented 
such  a  ditch  not  scoured  ad  nocumentum,  etc.  which  was  false  and 
so  justifies,  but  did  not  say  that  they  knew  it  to  be  false  of  theif 
own  proper  knowledge.  It  was  moved,  on  demurrer,  that  they  might 
have  presented  it  upon  evidence.  Gawdy  and  Fenner,  Justices, 
held,  that  it  was  properly  and  commonly  to  be  intended  that  the 
presentment  was  false  of  their  own  knowledge,  and  so  perjury  ;  and 
that  if  they  presented  it  upon  evidence,  the  plaintiff  ought  to  shew 
it  in  his  replication.  But  Popham,  J.  said,  that  a  man  may  not  jus- 
tify by  intendment,  but  that  it  ought  to  have  been  precisely  alleged. 
But  there  was  another  defect  in  the  plea,  which  was  held  by  all  the 
justices  to  be  incurable,  namely,  the  want  of  an  allegation  that  the 
ditch  was  within  the  leet ;  for  if  not,  then  the  presentment  thereof 
was  out  of  their  charge,  and  there  was  no  perjury. 

Secondly,  as  to  the  nature  of  the  plea,  with  reference  to  the 
words  laid  in  the  declaration. 

'Where  the  original  charge  is  in  itself  specific,  the  |  '478  ] 
defendant  need  not  further  particularize  it  in  his  plea. 
In  an  action  on  the  case  (//)  for  calling  the  plaintiff  thief,  and  say- 
ing that  he  stole  two  sheep  of  J.  8.,  the  defendant  pleaded  that  the 
plaintiff  stole  the  same  sheep,  by  reason  of  which  he  called  him 
thief,  as  well  he  might ;  and  the  plea  was  held  to  be  good  (:  >. 

(w)  See  the  case  of  Buckley  v.  W'oott,  site  in  a  plea.     See  the  cases  cited  below, 

4  Rep.  14.     1   Salk.   222.     1  Will.  Saund.  478,  &0, 
82,  n.  3.  (y)  Br.  action  stir  cas.  27  H.  B,  22,  pL  3- 

(x)  Cro.  Eli*.  492,  as   to  the  degree  of        (;)  1  Roll.  Ab.  87. 
Certainty  and  particularity  which  is  requi- 


478  CIVIL  REMEDY— DEFENCE. 

Though  the  charge  imputed  to  the  plaintiff  be  general,  as  laid  in 
the  declaration,  the  defendant  must,  in  his  plea,  charge  him  with 
specific  (a)  instances  of  offences  of  the  same  nature  with  the  gener- 
al charge.  Thus  a  defendant  is  not  at  liberty  to  charge  a  person 
with  swindling,  without  shewing  specific  instances  of  it;  for  when- 
ever one  charges  another  with  fraud,  he  must  know  the  particular 
instances  upon  which  his  accusation  is  founded,  and  therefore  ought 
to  disclose  them  (6). 

In  Morrice  v.  Lang-dale  (r),  which  was  an  action  for  calling  the 
plaintiff  (who  was  a  stock  jobber)  a  lame  duck,  the  defendant  jus- 
tified, pleading  generally  that  the  plaintiff  had  not 
[  *479  ]  *fulfilled  his  contracts.  Upon  demurrer,  Lord  Eldon,  C. 
J.  observed,  that  it  had  been  strongly  argued  in  support 
of  the  demurrer  to  the  plea,  that  in  consequence  of  its  generality 
the  plaintiff  must  proceed  to  trial  at  the  hazard  of  being  able  to 
produce  evidence  applicable  to  any  contract  which  he  ever  made. 
But  the  declaration  itself  was  defective,  and  the  plaintiff  had  leave 
to  amend. 

In  the  case  of  Newman  v.  Bailey,  the  plaintiff,  a  justice  of  the 
peace,  brought  an  action  against  the  defendant,  for  having  charged 
him  with  "  pocketing  all  the  fines  and  penalties  forfeited  by  delin- 
quents whom  he  had  convicted,  without  distributing  them  to  the 
poor,  or  in  any  manner  accounting  for  a  sum  of  <£50  then  in  hand." 
The  defendant  pleaded  that  the  plaintiff  was  a  justice  of  the  peace, 
and  that  during  the  time  he  acted  as  such,  he  convicted  divers  and 
sundry  persons  respectively,  in  divers  and  sundry  fines  and  sums  of 
money,  for  and  on  pretence  of  their  having  respectively  committed 
divers  respective  offences  against  the  form  of  divers  statutes  of  this 
realm  ;  which  said  respective  fines  and  sums  of  money,  amounting 
in  the  whole  to  ,£50,  he  received  of  the  respective  delinquents  so  by 
him  convicted,  and  had  not  paid  the  same  to  the  several  persons  to 
whom  the  same  ought  to  have  been  paid  by  virtue  of  the 
"  *480  ]  respective  statutes,  *but  had  kept  and  detained  the  same, 
&c.  To  this  there  was  a  special  demurrer,  and  the 
court  were  clearly  of  opinion  that  the  plea  was  bad,  because  it  did 
not  specify  any  one  fine  or  penalty  which  had  been  unjustly 
levied  (d). 

(a)  Styles.  118.     Strachey's   case.     See         (c)   2  B.  &  P.  284. 

the  illustrations  cited  below,  and   Lane  v.         (d)  Hil.  16  G.  3.     2  Chitty's  C.  T.   M. 
Howman,  1  Price,  76.  665.     So,  where  a  libel  charged  an  attorney 

(b)  Johnson  v.  Stuart,  1  T.  R.  748.  with    general  misconduct,  viz.  gross  negli- 


SPECIAL  PLEA.  -1«j 

The  matter  alleged  in  the  justification  to  be  true,  most,  in  every 
respect,  correspond  with  the  imputation  complained  of  in  the  declar- 
ation. Thus,  where  the  defendant,  in  the  first  instance,  charges  the 
plaintiff  with  having  feloniously  stolen  one  kind  of  chattel,  he  cannot 
afterwards  justify  by  pleading  that  the  plaintiff  had  really  been 
guilty  of  stealing  a  different  one  1 1  ».  And  so  with  regard  to  every 
circumstance  at  all  material,  the  facts  Bel  op  by  way  of  justification 
in  the  pica  must  be  strictly  conformable  with  the  imputation  charged 
in  tin-  declaration.  The  words  for  which  the  action  was  brought, 
charged  the  plaintiff  with  having  been  a  bankrupt  on  the  first  day  of 
April,  in  the  12th  year  of  James  the  first.  The  defend- 
ant pleaded  that  the  plaintiff  'was  a  bankrupt  on  the  [  *481  ] 
Irsl  day  of  April,  in  the  15th  year  of  the  same  reign, 
and  that  therefore  he  published  the  words ;  and  the  plea  was  held 
bad  (/),  because  it  was  not  averred  that  the  plaintiff  continued  a 
bankrupt  to  the  time  of  publishing  the  words,  for  he  might  after- 
wards recover  his  credit  in  trade. 

Id  Fysh  v.  Thorowgood  (g),  the  plaintiff  declared  "  that  a  com- 
mission issued  out  of  the  Exchequer,  directed  to  the  plaintiff  and 
one  J.  S.  by  force  whereof  they  took  and  returned  the  examina- 
tions of  several  witnesses,  and  that  thereupon  the  defendant  said, 
that  the  plaintiff  had  returned  as  depositions  the  examination  of 
divers  that  were  never  sworn."  The  defendant  pleaded  in  bar, 
that  he  did  return  the  examination  of  one  J.  S.  who  was  never 
sworn.  Upon  demurrer,  it  was  adjudged  that  this  was  no  good 
justification  in  bar.  because  it  is  of  one  witness  only,  whereas 
the  charge  was  in   the  plural   number. 

Where  the  declaration  alleged  that  the  plaintiff  was  lawfully  pos- 
d  of  mines  and  ore  gotten  and  to  be  gotten  from  them,  and 
was  in  treaty  for  the  sale  oT  the  ore:  and  that  the  defendant  pub- 
lished a  malicious,  injurious,  and  unlawful  advertise- 
ment, cautioning  persons  against  purchasing  *the  ore  [  *482  J 
per  quod  he  was  prevented  from  Belling  it ;  plea,  that  the 
adventurers  or  persons  having  an  interest  or  share  in  the  mine, 

gence,  falsehood,  prevarication,  and  making  demurrer  to  be  insufficient.     Holmes    v. 

out  expensive   Mils   of  costs,  in   respect  of  CaUtby,  1  Taunt.  548  [1]. 

business  done  for  the  defendant,  a  plea  of        (c)   HiUdtn  V.  Jlferetr,  Cro. "J.  676. 

justification    merely   repeating    the    same         (/)    L'pshecr  v.  Belts,  Cro.  J. 

general   charges,    without   specifying   any  (g)   Cro.  Eliz.  628. 

particular  acts  of  misconduct,  was  held  on 

[1]  See  Van  J\'ess  v.  Hamilton,  19  Johns.R.  368. 


482  CIVIL  REMEDY— DEFENCE. 

thought  it  their  duty  to  caution  persons  against  purchasing  the 
ore,  &c,  as  persons  purchasing  such  ore  would  be  called  on  for  the 
amount,  and  that  a  bill  in  equity  was  about  to  be  filed  by  the  ad- 
venturers ;  it  was  held,  on  special  demurrer,  that  the  plea  was  in- 
sufficient, both  because  it  did  not  disclose  the  names  of  the  adven- 
turers, and  show  who  they  were ;  and  secondly,  because  it  did  not 
show  that  the  defendant,  in  publishing  the  advertisement,  acted 
under   the  authority  of  the  adventurers  (/*). 

So  it  was  held,  that  a  plea  that  the  plaintiff  had  been  confined  in 
England  on  a  charge  of  high  treason,  was  not  supported  by  proof 
that  the  plaintiff  had  been  apprehended  by  virtue  of  a  warrant  from 
the  Duke  of  Portland,  one  of  the  secretaries  of  state,  on  suspicion 
of  high  treason  (i). 

Where  the  libel  charged  the  plaintiff  with  acts  of  barbarity  to  a 

horse,  and  that  one  of  its  eyes  was  literally  knocked  out,  and  that 

the  plaintiff  had  ordered  a  person  who  had  the  care  of  it  not  to  let 

any  person  see  it ;  and  issue  was  taken,  on  a  general 

*483  ]  plea  that  the  statement  was  true,  and  the  *jury  negatived 
the  fact  of  knocking  out  the  eye,  but  found  for  the  de- 
fendant as  to  the  rest ;  the  court  held  that  the  plaintiff  was  entitled 
to  the  verdict  (j  ) . 

But  it  is  sufficient  if  the  substance  of  the  libellous  charge  be  jus- 
tified. 

The  supposed  libel  (A;)  alleged  that  a  serious  misunderstanding 
had  taken  place  among  the  independent  dissenters  of  M.  and  their 
pastor,  in  consequence  of  some  personal  invectives  thrown  from  the 
pulpit  by  the  latter,  and  that  the  matter  was  to  be  taken  up  seri- 
ously. The  defendant  in  his  plea  alleged  that  the  plaintiff,  whilst 
officiating  as  minister,  published  from  a  part  of  the  chapel,  in  the 
presence  of  his  congregation,  of  and  concerning  one  M.  P.  the 
teacher  of  a  Sunday  school,  the  scandalous  words  following :  "  I 
have  something  to  say  which  I  have  thought  of  saying  for  some  time, 
namely,  the  improper  conduct  of  one  of  the  female  teachers :  her 
name  is  Miss  Fair  ;  her  conduct  is  a  bad  example  and  disgrace  to 
the  school ;  and  if  any  of  the  children  dare  to  ask  her  to  go  home, 
she  shall  be  turned  out  of  the  school  and  never  enter  it  again  :  Miss 
Fair  does  more  harm  than  good,  and  thereby  gave  great 
[  *484  ]  offence  to  divers  of  the  dissenters,  to  wit  one — *and  one — 
and    occasioned    a    serious    misunderstanding    amongst 

(h)  Rowe  v.  Roach,  1  M.  &  S.  304.  ( ;  )    Weaver  v.  Loyd,  2  B.  &  C.  678. 

(i)  Bell  v.  Byrne,  13  East,  554.  (fc)  Edwards  v.  Bell,  1  Bing.  403. 


SPECIAL  PLEA.  484 

the  dissenters."  After  a  verdict  for  the  defendant,  the  court  held 
that  the  plea  was  an  answer  to  the  declaration,  although  the  libel 
alleged  a  misunderstanding  to  have  taken  place  between  the  pastor 

and  his  congregation,  whilst  the  justification  alleged  the  misunder- 
standing to  have  taken  place  among  the  congregation  only. 

Care  should  be  taken  to  apply  the  justification  where  the  matter 
of  justification  admits  of  it,  to  the  whole  of  the  imputation  contained 

in  the  declaration.  If  any  part  he  left  uncovered,  the  plaintiff  will, 
on  proof  of  the  words  or  libel  stated  (or  without  proof,  if  the  gene. 

ral  issue  be  not  pleaded),  he  entitled  to  damages  in  res] t  of  that 

part  of  the  charge  to  which  the  justification  is  not  pleaded,  even  al- 
though such  justification  might  have  been  pleaded  to  the  whole 
charge.  The  plaintiff  declared  for  these  words  {inter  alia),  he 
(meaning  the  plaintiff,)  has  robbed  me  to  a  serious  amount ;  the  de- 
fendant pleaded  the  general  issue  ;  and  as  to  the. words,  "  He  has 
robbed  me,"  pleaded  that  the  plaintiff  had  on  such  a  day,  robbed 
him  of  a  loaf  of  the  value  of  three  pence  ;  the  plaintiff  proved  the 
words  as  laid  ;  the  jury  found  the  justification  as  pleaded,  but  were 
directed  by  the  learned  judge  who  tried  the  cause,  to  give  some 
damages  in  respect  of  the  words  which  were  not  justified  ; 
and  they  found  a  verdict  *for  the  plaintiff,  with  forty  shil-  *485  ] 
lings  damages.  The  court  (/),  afterwards  discharged  a 
rule  nisi,  which  had  been  obtained  for  entering  judgment  for  the 
defendant,  non  obstante  veredicto.  It  would  be  proper,  in  such  a 
case,  to  plead  the  justification  to  the  whole  of  the  words,  and  to 
aver  that  the  plaintiff  had  robbed  the  defendant  to  a  serious  amount, 
alleging  the  robbery  according  to  the  facts;  this  would  raise  the 
question,  of  fact,  as  it  seems  rather  than  of  law,  whether,  as  alleg- 
ed, the  robbery  was  to  a  serious  amount. 

Where  the  defendant  pleads  in  justification,  that  the  alleged  libel 
is  a  fair  reporl  of  a  judicial  proceeding,  he  ought  to  Bhew  in  his  plea 
that  he  has  given  a  true  ami  accurate  report  of  the  proceeding. 

And  it  is  not  sufficient  to  allege  that  the  alleged  libel  is  in  sub- 
stance a  true  and  accurate  report.  For  the  substance  is  nothing 
more  than  the  inference  which  the  publisher  of  the  libel  has  drawn 
from  what  passed  at  the  trial  (m),  it  ought  to  be  shewn  that  the  re- 
port is  a  true  and  accurate  report,  or  at  least  that  no  necessary 
matter  has  been  omitted,  in  order  that  the  court  may,  on  demurrer, 
be  able  to  decide  whether  it  was  lawful  to  publish  that  report  (n). 

(/)  Bayley  and  Holroyd,  Js.    in  tho  C.         (m)   Flint  v.  Pike,  4  B.  :»nd  C.  473. 
P.  Lancaster.  («)  See  theobservation>  of  Littlcdale,  J. 

Vol.  I.  34 


486  CIVIL  REMEDY— DEFENCE. 

Besides,  the  plea  would  neither  deny  that  the  libel  was  published 
with  the  malicious  motives  alleged  in  the  declaration,  nor  would  it 
shew  to  the  court  that  it  was  necessary  that  the  public  should  be 
made  acquainted  with  the  matter  stated  in  the  alleged  libel.  The 
plaintift'  declared  on  a  libel  which  professed  to  give  a  short  summary 
of  a  trial  of  an'  action,  and  after  that  summary,  to  give  an  outline 
of  the  speech  of  the  counsel  for  the  defendant  in  that  cause  ;  and 
the  libel  set  out  part  of  a  speech,  containing  severe  reflections  on 
the  conduct  of  the  plaintiff,  the  attorney  for  the  plaintiff  in  that 
cause  ;  the  defendant  pleaded  that  the  alleged  libel  was,  in  sub- 
stance, a  true  report  of  the  trial.  But  the  court,  upon  a  general 
demurrer,  gave  judgment  for  the  plaintiff  (o). 

So  again,  where  the  plaintiff  declared  on  a  libel  in  a  public  news- 
paper, which  purported  to  contain  a  true  account  of  the  speech  of  a 
counsel,  upon  an  indictment  for  a  conspiracy  ;  the  re- 
[  *487  "|  port,  *after  setting  out  the  speech,  added, "  the  first  wit- 
ness called  was  R.  P.  who  proved  all  that  had  been  sta- 
ted by  the  counsel  for  the  prosecution  ;  and  then  stated,  that  in  con- 
sequence of  another  witness  being  unable  to  prove  a  deputation  from 
the  under  sheriff,  the  jury,  under  the  direction  of  the  court,  were 
obliged  to  give  a  verdict  of  acquittal.  The  defendant  pleaded  (inter 
alia)  that,  at  the  trial  of  the  indictment,  the  counsel  for  the  pros- 
ecution made  the  speech  set  out  in  the  supposed  libel ;  and  that 
having  so  stated  the  facts,  the  said  R.  P.,  by  his  testimony,  proved 
all  that  had  been  so  stated  by  the  counsel  for  the  prosecution,  and 
then  alleged  the  inability  of  the  other  witness,  &c,  and  the  conse- 
quent acquittal.  And,  upon  a  general  demurrer,  it  was  held  that 
the  plea  could  not  be  supported  :  the  publication,  to  be  justifiable, 
ought  to  have  stated  the  evidence,  in  order  that  those  who  read  the 
report  might  judge  for  themselves  ;  and  if  a  party  is  to  be  allowed 
to  publish  what  passes  in  a  court  of  justice,  he  must  publish  the 
whole  case,  and  not  the  conclusion  which  he  himself  draws  from  the 
evidence  (jf). 

Where  the  defendant  justifies  the  speaking  of  the  words,  or  pub- 
lishing the  alleged  libel  in  the  course  of  a  parliamentary 
or  judicial  proceeding,  he  *must  shew,  in  his  plea,  that    [  *488  ] 

in  Flint  v.  Pike,  4  B.  and  C.  473.    In  the  and  not  merely  state  the  conclusion  which 

case  of  Duncan  v.  Thwaites,  4  B.  and  A.  he  himself  draws  from  the  evidence. 
612,  Abbott,  C.  J.  said,  "  If  a  party  is  to         (o)  Flint  v.  Pike,  4  B.  and  C.  473. 
be  allowed  to  publish  what  passes  in  a  court        (p)  Lewis  v.  Walter,  4  B.  and  A.  605. 
of  justice,  he  must  publish  the  whole  case. 


SPECIAL  PLBA.  t8fi 

he  has  been  guilty  of  no  publication,  which  the  nature  of  the 
proceedings  did  not  call  for,  or,  at  Least,  care  must  be  taken  that 
no  publication,  Btated  in  the  declaration,  is  left  unprotected  by 
the  matter  of  justification  pleaded.  The  defendant  (9),  had  ex- 
hibited his  bill  iii  the  Star  Chamber,  alleging  that  the  plaintiff  v. 
a  procurer  of  murders  and  piracies:  the  declaration  alleged  the  ex- 
hibiting of  the  bill,  and  that  the  said  defendant,  at  B.,  in  the  county 
of  Salop,  said,  that  the  said  lull  and  the  matters  contained  therein, 
were  true.  The  defendant,  in  his  plea,  confessed  the  exhibiting  of 
the  bill  in  the  Star  Chamber,  and  that  he,  in  tin:  said  court  at 
Westminster,  spoke   the   said  words  absque  hoc,  that  he  the 

words  in  the  county  of  Salop  before  or  after  the  day  mentioned  in 
the  declaration,  by  which  he  excluded  the  day  itself,  for  which  rea- 
son the  plea  was  held  to  be  insufficient.  But  judgment  for  the 
plaintiff  in  this  case  was  afterwards  reversed,  upon  writ  of  error  in 
the  Exchequer  Chamber,  because  the  defendant  had  asserted  in  the 
county  of  Salop  nothing  more  than  that  the  matters  contained  in  the 
bill  were  true,  without  specifying  the  contents  of  the  bill. 

Where  the  alleged  libel  was  contained  in  a  petition  to 
the  members  (r)  of  a  committee  of  the  *House  of  Com-  [  *489  ] 
mons,  the  plaintiff,  in  his  declaration,  alleged  generally 
that  the  defendant  had  published  the  libel  to  "  divers  subjects." 
The  defendant  justified  the  publication  to  divers  persons  being  mem- 
bers of  the  committee,  and  averred  it  to  be  the  same  publishing  of 
which  the  plaintiff  had  complained,  and  the  plea  was  held  sufficient. 
But  it  seems,  that  if  the  plaintiff,  in  his  declaration,  allege  a  publi- 
cation to  divers  people  by  name,  if  the  defendant  justify  the  publi- 
cation to  some  of  them  by  name,  he  must  traverse  a  publication  to 
the  rest. 

And  the  reason  of  the  distinction  is,  that  in  the  former  case,  where 
a  general  publication  to  divers  subjects  is  alleged,  the  plea  that  he 
published  to  divers  subjects,  being  members  of  the  committee,  is  con- 
sistent with  the  declaration,  and  therefore  with  the  averment  that 
the  publication  is  the  same.  But  if  the  plaintiff  declare  of  a  pub- 
lication to  A.  B.  C.  and  D.,  the  defendant,  in  justifying  a  publica- 
tion to  A.  and  B.,  cannot  aver  it  to  be  the  sain-.1  publication  with 
that  complained  of  but  should  traverse  the  publication  to  C.   and 

D.  0). 

Where  part  of  a  publication  consists  of  a  report  of  judicial  pro- 

(q)  Buckley  v.  Wood,  -i  Co.  15.  (s)  See  1  Will.  Saund.  133,  n.  4,  and  22, 

(r)  Lake  v.  King,  1  Saund.  120.  n.  2. 


489  CIVIL  REMEDY— DEFENCE. 

ceedings  and  the  rest  of  comment,  since  the  separation  is 
[  *490  ]    necessary  for  the  *purpose  of    defence,  the  defendant 

ought  (0  to  take  upon  himself  the  burthen  of  making  it, 
in  order  that  the  court  may  see  what  parts  he  means  to  justify. 
And  if  he  does  not,  the  court  will  not  allow  him  to  amend  his  plea. 
A  plea  of  justification,  however,  may  be  good,  with  a  general 
reference  to  certain  parts  of  the  libel  set  forth  in  the  declaration,  if 
the  court  can  see  with  certainty  what  parts  are  referred  to  ;  as  if 
the  reference  be  to  so  much  of  the  libel  as  imputes  to  the  plaintiff 
such  a  crime  as  perjury,  that  would  be  sufficient  without  repeating 
all  those  parts  again,  which  would  lead  to  prolixity  of  pleading  and 
ought  to  be  avoided  (u). 

The  defendant  may,  under  the  statute  (z),  by  leave  of  the  court, 
join  a  general  plea  of  not  guilty  to  the  whole  declaration,  with  a  plea 
of  special  justification  to  the  whole  or  part  (y).  Thus  he  may  jus- 
tify so  much  as  imputes  to  the  plaintiff  the  commission  of  a  specific 
crime,  as  perjury  (».     And  he  may  plead  not  guilty,  as  to  part  of 

the  words,  and  justify  as  to  the  residue  (a). 
[  *491  ]        *When  the  words,  as  stated  on  the  record,  appear  to 

be'  demurrable,  it  may  be  useful  to  recollect  the  rule 
which  Sir  E.  Coke  (6)  termed  "  an  excellent  point  of  learning  in 
actions  for  slander,"  namely,  "  observe  the  occasion  and  cause  of 
speaking  them,  and  how  it  may  be  pleaded  in  the  defendant's  ex- 
cuse. When  the  matter  in  fact  will  clearly  serve  for  your  client, 
although  your  opinion  is,  that  the  plaintiff  has  no  cause  of  action, 
yet  take  heed  you  do  not  hazard  the  matter  on  a  demurrer,  in 
which,  upon  the  pleading  and  otherwise,  more  perhaps  will  arise 
than  you  thought  of ;  but  first  take  advantage  of  matters  of  fact, 
and  leave  matters  of  law,  which  always  arise  upon  the  matters  of 
fact  ad  ultimum,  and  never  at  first  demur  in  law,  when,  after  the 
trial  of  the  matters  in  fact,  the  matter  in  law  will  be  saved  to  you." 

(0  7  East,  493.  («)  Styles  v.  JVokes,  7  East,  493. 

(it)  Per  Le  Blanc,  J.  7  East,  507.  (o)  Rich  v.  Holt,  Cro.  J.  267. 

(x)  4  Ann,  c.  16.  (b)  4th  Rep. 
(y)  See  Tidd,  603,  4  edit. 


CHAPTER  XVII. 


Of  the  Replication. 


[  »492  ]  *It  seldom  happens  that  any  thing  can  be  replied  to 
the  defendant's  special  plea,  expect  the  general  replica- 
tion of  de  injuria  propria,  &c.  which  puts  the  whole  of  the  defend- 
ant's plea  in  issue  (a). 

In  some  instances,  however,  a  special  replication  becomes  neces- 
sary. As,  where  the  original  slander  imputes  to  the  plaintiff  the 
commission  of  a  specific  crime,  and  the  defendant  pleads  in  justifi- 
cation that  the  plaintiff  was  really  guilty,  the  plaintiff  may  reply, 
that,  after  his  commission  of  the  crime,  and  before  the  speaking  of 
the  words,  he  was  pardoned  (6). 

And  it  has  been  said,  that  in  such  case  it  makes  no  difference 
whether  the  pardon  be  a  special  one,  of  which  the  defendant  was 
ignorant,  or  a  general  one,  since  a  man  who  takes  upon  himself  to 
spread  slander,  does  it  at  hjs  peril ;  but  that  if  a  man  who  had 
committed  felony,  secretly  procure  a  pardon,  and  ano- 
[  *493  ]  ther,  not  knowing  of  *the  pardon,  cause  him  to  be  appre- 
hended for  felony,  he  would  be  justified,  because  what  ho 
did  was  for  the  advancement  of  justice. 

But  where  the  pardon  is  general,  containing  clauses  of  exception, 
it  seems  the  plaintiff  should  aver  that  his  case  docs  not  fall  within 
any  of  the  exceptions  (c). 

And  even  after  a  pardon,  if  the  defendant  merely  say  that  the 
plaintiff  was  a  thief,  the  pardon  (d)  will  be  available. 

(«)  1  Saund.  244,  n.  7.  (c)  Hob.  67. 

(b)   Cuddington  v.  Wilkins,  Hob.   81.  (<0  Hob.  82. 


494  CIVIL  REMEDY— DEFENCE. 

Where  the  plaintiff  has  stated  the  publication,  generally,  to  have 
been  made  to  divers  persons,  not  naming  them,  and  the  defendant 
justifies  the  publication  to  particular  persons,  as  to  the  members  of 
a  committee  of  the  House  of  Commons,  if  the  plaintiff  mean  to  in- 
sist upon  a  publication  to  any  others,  he  should  state  such  publica- 
tion by  way  of  new  assignment  (e). 

(e)  See  1  Saund.  133,  and  Chitty  on  Pleading,  603. 


TREATISE 


LAW  OF  SLANDER  AND  LIBEL, 


AND    INCIDENTALLY    OF 


MALICIOUS  PROSECUTIONS. 


Nescit  tox  niissa  revcrti. 


By  THOMAS  STARKIE,  Esq. 

of  Lincoln's  inn,  barrister  at  law. 


FROM    THE    SECOND    ENGLISH    EDITION    OF  1830. 

WITH    NOTES    AND    REFERENCES    TO    AMERICAN    CASES    AND    TO    ENGLISH 
DECISIONS    SINCE    1830, 

By  JOHN   L.   WENDELL, 

COUNSELLOR    AT    LAW. 


VOL.  II. 


HARTFORD,  CONN. 

PUBLISHED    BY   JOHN    L.    WENDELL, 

1858. 


Entered  according  to  Act  of  Congress,  in  the  year  1848, 

By  JOHN  L.  WENDELL, 

in  the  Clerk's  Office  of  the  District  Court  of  the  Northern  District  of  New  York. 


WEST   BROOKFIELD,    MASS. 
PRINTED     BY     THOMAS     MOKET. 


CONTENTS  OF  VOL.  II. 


CHAPTER  I. 
Of  the  Evidence  for  the  Plaintiff,         -----._  i 

CHAPTER  II. 
Of  the  Evidence  for  the  Defendant,      ......         84 

CHAPTER  III. 
Proceedings  after  Verdict, 105 

CHAPTER  IV. 
Of  Costs, 113 

CHAPTER  V. 
Of  the  Writ  of  Prohibition, 117 

CHAPTER  VI. 
Publications  against  Religion,       -         - 129 

CHAPTER  Vn. 

Publications  against  Morality,      -         -         -         -         .         .         -       15o 

CHAPTER  VIII. 
Publications  against  the  Constitution,  &o. lt;o 

CHAPTER  IX. 
Publications  Exciting  to  an  Illegal  Act, 207 

CHAPTER  X. 
Publications  against  Sound  Policy  and  Convenience,         -        -        -      216 


iv  CONTENTS. 

CHAPTER  XI. 
Of  the  Publication  of  the  Libel, 225 

CHAPTER  XII. 

Of  the  Defendant's  Intention  and  Collateral  Circumstances,     -         -       240 

CHAPTER  XIII. 
Proceedings  against  Offenders, -       259 

CHAPTER  XIV. 

Proceeding  by  information ;  Indictment ;  Seizure  of  Papers,  &c.       -       272 

CHAPTER    XV. 

Evidence  in  Criminal  Proceedings  for  Libel,  ....      309 

CHAPTER  XVI. 
Of  Trial  and  Verdict, 327 

CHAPTER  XVII. 

Of  Proceedings  After  Verdict, 360 

Precedents, 373 


ciiaptj;  it  i. 


Of  the  Evidence, 


The  natural  order  of  the  evidence,  in  an  action  for  slan-        [  *1  ] 
der,  on  the  part  of  the  plaintiff,  where  the  general  issue 
has  been  pleaded,  is 

1st.  Of  special  character  and  extrinsic  facts,  when  they  arc  es- 
sential to  the  action. 

2dly.  Of  the  act  of  speaking  the  words  or  publishing  the  libel. 

3dly.  Of  the  truth  of  the  colloquium  and  innuendos. 

4thly.  Of  the  defendant's  malice  and  intention,  where  malice  in 
fact  is  material. 

5thly.  Of  the  damage. 

First,  as  to  the  proof  of  special  character,  and  other  extrinsic 
facts. 

Where  the  special  character  is  essential  to  the  action,  it  is  al- 
leged either  generally  or  particularly. 

When  it  is  generally  alleged,  it  is  usually  sufficient  to  prove,  by 
general  evidence,  that  the  plaintiff  is  in  the  actual  possession  of  the 
office  or  situation  in  which  he  has  been  defamed,  without 
*strict  proof  of  any  legal  inception  or  investment.  [  *2  ] 

For  in  an  action  against  a  mere  wrongful  invader  or 
disturber,  a  party  is  not  to  be  put  to  the  hazard  or  peril  of  giving 
detailed  and  conclusive  proof  of  his  title  ;  and  it  is  to  be  presumed, 
till  the  contrary  be  shown,  that  he  acted  legallv. 

Ami,  therefore,  where  a  plaintiff  avers  generally  that  he  filled 
any  particular  situation  or  oflice,  in  which  he  has  been  calumniated, 
or  that  lie  exercised  any  particular  profession  or  business,  it  is  suffi- 
cient to  give  general  evidence  of  his  having  acted  in  that  office  or 
situation,  or  of  his  having  exercised  that  particular  profession,  or 
carried  on  that  trade  or  business.  If  the  declaration  allege  that  the 
plaintiff  was,  at  the  time  of  the  alleged  injury,  a  magistrate  or  peace 
officer  (/),  it  is  sufficient  to  show  that  he  previously  acted  as  such. 

(/)  PerBuller,  J.  Berrymanv.  Wise,  1  T.  It.  GG6.  Gordon's  case,  Leach.  581. 
R.  v.  Shelly,  Leach,  581,  n. 

Vol.  II.  35 


CIVIL  REMEDY— EVIDENCE. 


If  it  allege  that  the  plaintiff  was  an  attorney  of  such  a  court,  it  is 
sufficient  to  show  that  he  was  before  and  at  the  time,  practising  as 

an  attorney  of  that  court  (g-).  It  has  indeed  been  *doubt- 
[  *3  ]        ed,  whether,  under  an  allegation  that   the  plaintiff  was 

at  the  time  of  the  alleged  slander  a  physician,  it  was 
necessary  to  produce  a  diploma  ;  and  the  judges  of  the  Court  of 
Common  Pleas  were  equally  divided  upon  this  question  (A). 

The  declaration  stated,  that  the  plaintiff  at  the  time  of 
[  *4  ]        *speaking  the  words,  was  "  a  physician."     Upon  the  trial 

of  the  cause  before  Sir  J.  Mansfield,  C.  J.  it  was  proved 
that  the  plaintiff  had  practised  for  some  years  as  a  physician  in  the 
town  of  Yarmouth  ;  that  Dr.  Girdlestone,  who  was  also  a  physician 
at  Yarmouth,  and  of  longer  standing  than  the  plaintiff,  had  been 
attending  one  Richard  Helsden  as  a  patient,  and  that  the  defendant 
was  employed  as  his  apothecary.  That  Dr.  Girdlestone  being  ob- 
liged to  leave  Yarmouth  for  a  day,  the  plaintiff  was  sent  for,  at  the 
request  of  Helsden's  wife,  and  prescribed  for  him  ;  the  prescription 
was  made  up  by  the  defendant.     On  Dr.  Girdlestone's  return,  the 


(g)  Beriymu-n  v.  Wise,  4  T.  306.  Star- 
kie  on  Evidence,  part  iv.  372.     In  the  case 
of  Berryman  v.  Wise,  4  T.   R.   8G6,  the 
plaintiff  averred   that   he  was  an  attorney 
of  the  Court  of  King's  Bench,  and  having 
been  employed  in   a   particular  cause,  had 
received  a  certain  sum  of  money,  which  the 
defend  ant  charged  him  with  swindling,  ad- 
ding  a   threat,   that  he   would   move   the 
court  to  have  him  4:  struck  off  the  roll  of 
attornies."     Upon  the  trial  before  Thomp- 
son, Baron,  at  the  York  assizes,  the  plain- 
tiff pi'oved  the  words,  and  his  having  been 
employed  as  an  attorney  in  that  and  others 
suits.     It  was  objected   that    the   plaintiff 
had  not  proved  the   first  allegation,  in  his 
declaration,  viz.  that  he  was  an   attorney 
of  the  Court  of  King's  Bench,  which  could 
only  be  proved   by   his  admission,  or  by  a 
copy  of  the   roll   of  attornies ;  but  the  ob- 
jection  was   overruled,  the  learned  judge 
reserving  the  point  with  liberty  to  move  to 
enter    a  nonsuit.     Upon    motion  made  to 
that  effect,  the  court  were  of  opinion,  that 
the  evidence  was  sufficient,  for  the  defend- 
ant's threat  imputed  that  the  plaintiff  was 
an  attorney.     And  Buller,  J.  said,  in   the 
case  of  all  peace  officers,  justices  of  the 


peace,  cmstables,  &c.  it  is  sufficient  to 
prove  that  they  acted  in  those  characters, 
without  proving  their  appointments,  and 
that  even  in  case  cf  murder.  Excise  and 
custom-house  officers,  indeed,  fall  under  a 
different  consideration,  but  even  in  their 
case,  evidence  was  admitted,  both  in  civil 
and  criminal  suits,  to  show  that  the  party 
was  a  reputed  officer  prior  to  the  11th  G. 
I  c.  10,  s.  12. 

(A)  Smith  v.  Taylor,  1  N.  R.  196.  In 
the  previous  case  of  Pickford  v.  Gulch, 
Cor  Buller,  J.  Borchester  assizes,  1787, 
the  action  was  brought  for  calling  the 
plaintiff  a  quack.  The  declaration  alleged 
that  the  plaintiff  had  used  and  exercised 
the  profession,  &c.  of  a  physician,  &c. 
To  pi-ove  this,  a  person  who  was  a  surgeon 
and  apothecary  was  called,  who  would  have 
proved  that  the  plaintiff  for  several  years 
had  prescribed,  &c.  as  a  physician,  and 
that  the  witness  had  acted  under  him.  But 
Buller,  J.  was  of  opinion  that  the  evidence 
was  insufficient,  and  that  it  was  necessary 
to  produce  the  plaintiff's  diploma;  on  which 
it  was  produced  in  court,  and  the  plaintiff 
recovered. 


SPECIAL  CHARACTER.  4 

plaintiff  requested  that  lie  might  be  sent  for;  Dr.  G-.  refused,  and 
the  defendant  then,  with  reference  to  the  transaction,  said,  "  1  and 
Dr.  (!.  both  thonghl  thai  Eelsden  was  doing  well,  till  Mrs.  Eelsden 
called  in  Dr.  Smith,  who  has  npset  all  that  we  have  done,  and  die 
he  (Helsdcn)  mu3t."  Metises  v.  Thornton  was  cited,  mi  the  part  of 
tin-  defendant,  t<>  prove  it  to  be  necessary  for  the  plaintiff 
to  show  *that  he  was  a  regular  physician.  His  lordship  *5 
was  of  opinion,  that  the  case  was  irrelevant,  and  the  plain- 
tiff obtain*  !  a  verdict  lor  £100.  The  ease  was  afterwards  argued  on 
a  rule  to  show  cause  why  tin)  verdict  should  not  be  set  aside,  and  a 
new  trial  had  ;  and  the  learned  judges  not  being  agreed,  delivered 
their  opinions  seriatim ^  Sir  J.  Mansfield,  C.  J.  and  Heath.  J.  agreeing 
that  the  plaintiff  was  entitled  to  recover  without  further  proof ;  and 
Rooke  and  Chambre,  Justices,  conceiving  it  to  be  requisite  for  the 
plaintiff  to  prove  that  he  was  lawfully  authorized  to  practice.  As 
the  court  were  equally  divided,  the  plaintiff  of  course  retained  his 
verdict. 

The  argument  for  the  necessity  of  proving  a  regular  diploma  in 
that  case,  seems  to  resolve  itself  principally  into  the  question,  whe- 
ther, where  a  statute  prohibits  the  entering  in  a  particular  situation 
or  office,  without  some  particular  previous  qualification,  it  be  neces- 
sary in  an  action  by  a  party  aggrieved,  in  that  character,  to  prove 
such  qualification;  for  no  precise  form  is  essential  to  the  constitut- 
ing a  physician  (i) ;  and  physicians  were  contemplated  and  recog- 
nized by  the  law  as  such,  before  the  passing  of  the  statute,  which 
made  particular  qualifications  essential  to  the  legal  excr- 
*cise  of  their  profession.     On  general  legal  principles,  it  *G 

seems,  that  no  such  proof  is  essential ;  for  in  general,  it 
is  to  be  presumed,  that  a  party  who  acts  in  a  particular  situation. 
acts  legally  in  that  situation, 'and  that  he  has  conformed  to  and  not 
violated  the  law  in  so  acting.  This  presumption  is  made  in  favor  of 
innocence,  even  where  the  plaintiff  seeks  to  enforce  a  civil  contract, 
which  would  not  be  valid  without  such  conformity  (Je).  A  fortiori 
the  presumption  ought  to  be  made  against  a  mere  wrong-doer  (J). 

It  has  been  expressly  decided,  that  an  attorney  in  an  action  for  a 
libel  upon  him,  in  his  professional  character  is  not  bound  t<>  prove 

(t)  See  5  Com.  Dig.  tit.  Physician .  recover  for  business  done   without  proof  of 

(/c)  As  in  an   action  on   an   attorney's  qualification,    hut  that  is   by   the   express 

bill,  sec  Starkie  on  Evidence,  tit.  Attorney,  provision  of  the  statute. 

By  the  express  provisions  of  the  statute  65         (/)  See  Starkie  on  Evidence,  iv.  124  I. 

G.  3,  c.  194,  s.  21,  an  apothecary  cannot 


6  CIVIL  REMEDY— EVIDENCE. 

that  he  has  duly  taken  out  his  certificate  according  to  the  statute 

O)  [I]- 
r    *7  *In  the  subsequent  case  of  Pearce  v.  Whale  (ri),  the 

court  held  that  it  was  not  sufficient  for  the  defendant  to 
show  that  the  plaintiff,  who  sued  as  an  attorney  for  fees,  had  neg- 
lected to  take  out  his  certificate  in  previous  years,  without  also  giving 
evidence  to  negative  his  re-admission  as  an  attorney. 

But  although  the  allegation  of  character  be  general,  yet  if  there 
be  reason  to  apprehend  that  the  defendant  means  to  dispute  the 
plaintiff's  title  to  the  office,  situation,  or  other  special  character  to 
which  the  slander  or  libel  relate,  it  would  be  prudent  to  be  prepared 
with  the  best  evidence  to  establish  the  fact.     For  although  the  proof 
of  the  negative  might  lie,  in  the  first  instance,  on  the  defendant,  yet 
such  evidence  might  be  offered  as  would  suffice  to  estab- 
[    *8    ]     lish  the  negative  in  the  *absence  of  affirmative  proof,  the 
more  especially  if  the  plaintiff  was  apprized  of  the  defend- 
ant's intention  to  dispute  the  plaintiff's  title  to  the  special  character. 
But  where  the  plaintiff  himself  specifies  the  particular  mode  in 
which  he  was  invested  with  the  particular  character  in  which  he  has 
been  injured;  he  must,  it  seems,  prove  such  a  descriptive  allegation, 
with  its  circumstances  although  a  more  general  allegation  would 
havfc  been  sufficient.     For  though  a  totally  irrelevant  allegation  may 
be  rejected  as  surplusage,  one  which  is  material  to  the  cause  of  ac- 
tion, and  which  is  descriptive  of  the  legal  injury,  must  be  proved  as 
laid  (p). 

(m)  Jones  v.    Stevens,  Exch.   Trin.  T.  for  fees,  yet  that  he  did  Dot  by  the  omis- 

1822, 11  Price,  235,  it  was  held  in  that  case  sion,  entirely  lose  his  character  of  an  attor- 

that  an  attorney  might  recover  for  a  libel  ney,  and  was  not  to  be  subjected,  in  addi- 

upon  him  in  his  professional  character,  even  tion  to  the  penalty  and  disability  imposed 

although  evidence  was  given  on  the  part  of  by  the  statute,  to  be   aspersed  and  reviled 

the  defendant,  that  no  certificate  had  been  in  that  character.    But  note,  that  no  nega- 

taken  out  by  the  plaintiff  from  Nov.  1813  to  tive  evidence  was  given   to   show  that  the 

Nov.  1814;  or  from  Nov.  1821  to  Feb.  1822  plaintiff  had  not  been  re-admitted.     See 

when  the  last  certificate  was  obtained,  and  Pearce  v.  Whale,  5  B.  &  C.  38. 

that  the  plaintiff  had,  during  those  periods,  („)  5  B.  &  C.  38. 

practised  as  an   attorney;  notwithstanding  (p)  The  rule   in   principle  seems  to  be 

this  evidence,  the  court  held  that  although  this,  that  if  the  plaintiff,  instead  of  aver- 

the  plaintiff  might  be  disabled  by  the  stat.  ring  his  special  character  generally  merely 

37  G.  3,  c.  90,  from  maintaining  any  action  alleges  the  mode  of  appointment  or  invest- 


[1]  In  an  action  by  a  physician  for  words  imputing  want  of  skill,  it  was  held  that 
proof  that  he  had  practiced  in  his  profession  with  reputation  for  several  years,  was  suffi- 
cient evidence  of  his  being  a  physician.  Digest  of  South  Carolina  Reports,  p.  163.  See 
also  McPherson  v.  Cheadell,  24  Wendell,  24,  and  Finch  v.  Gridlefs  exr's.  25  Id.  469. 


SPECIAL  CHARACTER.  8 

•The  defendant  (?)  said  of  the  plaintiff,  "Tic  is  a  [  "■»  ] 
quack,  and  if  h  •  shews  you  a  diploma,  it  is  a  forgery." 

The  declaration  averred  that  the  plaintiff  "  was  a  physician,  and 
had  regularly  taken  his  degree  of  doctor  of  phj 

In  support  of  this  averment,  he  produced  a  diploma,  purporting, 
on  the  face  of  it,  to  have  been  granted  by  the  University  of  St. 
Andrew's,  in  Scotland,  and  to  have  the  Qniversity  seal  appendant 
to  it.     To  authenticate  this,  a  witness  was  offered,  to  prove  that  the 

rector  and  professors  of  the  University  of  St.  Andrew's  had  acknow- 
ledged, in  his  presence,  their  signatures,  subscribed  to  the  diploma. 
The  same  witness  was  ready  to  prove  a  certificate,  by  the  master 
and  professors,  of  the  due  taking  of  the  degree,  and  an  acknowl- 
edgment by  the  seal-keeper  of  the  University,  that  the  seal  append- 
ant to  the   diploma  was  the  seal  of  the  University.     Lord  Kenyon, 
C.  J.  deeming  tins  evidence  to  be  insufficient,  the  plain- 
tiff was  nonsuited.     A  motion  for  a  new  'trial  was  after-    [    *10 
wards  refused,  on  the  ground,  that  the  plaintiff  having 
averred  that  he  had  duly  taken  the  degree  of  doctor  of  physic,  he 
was  bound  to  prove  it ;  and  it  was  observed,  by  Lawrence,  J.  "  even 
if  it  be  not  necessary  in  general,  for  the  party  to  show  that  he  has 
taken  his  degree,  in  this  case  it  is  necessary  on  account  of  the  plain- 
tiff's allegation." 

Lord  Kenyon,  C.  J.  observed,  that  the  best  evidence  to  prove  the 
taking  of  a  degree  is  by  the  production  of  the  books  containing  the 
act  of  the  corporation  by  which  the  degree  is  conferred. 

But,  in  general,  if  the  slander  or  libel  assume  that  the  plaintiff 
possesses  the  character,  or  fills  the  situation  or  office  in  which  he  is 
defamed,  or  assumes  the  truth  of  facts  to  which  the  slander  or  libel 

ment,  he  must  prove  the  fact,  for,  being  should  not  be  presumed  from  evidence  that 
material  to  the  right  of  action,  it  cannot  be  the  party  has  acted  in  the  particular  char- 
rejected;  if  it  were  rejected,  no  sufficient  acter.  If  it  is  to  be  presumed,  from  such 
cause  of  action  would  be  alleged.  But  evidence,  that  the  party  is  an  attorney, 
where  the  plaintiff  alleges  his  appointment  why  is  it  not  also  to  be  presumed  that  he 
cumulatively,  as  if  he  allege  that  lie  is  an  has  been  admitted  an  attorney.  The  latter 
attorney,  and  has  been  duly  admitted,  &o.  presumption  indeed  necessarily  involves 
or  that  he  is  a  physician, and  has  taken  his  the  former;  a  presumption  "f  a  particular 
degree,  &o.  it  may  well  be  doubted  wheth-  fact  necessarily  includes  the  presumption 
er,  in  principle,  strict  proof  of  his  admis-  of  every  thing  whiofa  is  t-Miitial"  to  that 
sion  or  diploma  be  necessary.  For  such  fact,  and  without  which  it  oould  not  have 
allegations  may  be  regarded  as  cumulative  been. 

rather  than  descriptive,  and  there  seems  to  (</)   Dr.  Moises  v.    Dr.  Thornton,  8  T. 

be  no  reason  why,  in  such  a  case,  the  legal  R.  303. 
investment,    by    admission    or   otherwise, 

35* 


10  CIVIL  REMEDY— EVIDENCE. 

relates,  and  which  arc  averred  in  the  declaration,  it  operates  by  way 
of  admission,  and  no  further  evidence  of  the  fact  is  necessary. 
Thus  where  the  plaintiff,  being  an  attorney,  brought  his  action  for 
words,  used  by  the  defendant,  by  which  he  threatened  that  he  would 
have  the  plaintiff  struck  off  the  roll  of  attornies,  it  was  held  that 
proof  of  the  plaintiff's  being  an  attorney  was  unnecessary,  for  the 
words  imported  the  fact  (r)  [1] . 

*The  plaintiff  alleged  that  he  had  been  appointed  by 

*11    '     certain  persons,  exercising  the  powers  of  government,  in 

a  certain  republic  or  state  in  parts  beyond   seas,  to  wit, 

in  the  republic  or  state  of  Chili,  in  South  America,  to  the  office  or 

station  of  envoy  extraordinary  and  minister  plenipotentiary  to  and 

at  the  courts  of  Europe,  &c. 

It  was  objected,  at  the  trial,  that  the  plaintiff  had  not  proved 
that  there  was  such  a  state  as  Chili,  but  the  defendant  having 
asserted,  in  the  alleged  libel  that  the  plaintiff  had  colluded  with  J. 
H.,  fraudulently  to  obtain  money  in  the  matter  of  a  loan  for  the 
republic  or  slate  of  Chili,  &c  it  was  held  to  be  sufficient  proof  of 
the  existence  of  such  a  state  (s). 

Where  a  libel  alleged  that  certain  acts  of  outrage  had  been  com- 
mitted, it  was  held  that  this  was  evidence  to  support  an  averment 

of  the  fact,  in  the  introductory  part  of  the  record  (f). 
[  *12  ]         *In  the  next  place  it  is  necessary  to  prove  all  those 
prefatory  allegations  of  facts,  in  relation  to  which  the 
illegality  of  the  words  or  libel  consists. 

v\ny  material  variance  in  the  proof  of  such  averments  will,  it  has 
been  seen  (m),  be  fatal,  although  it  is  otherwise  where  the  allega- 
tion of  the  extrinsic  fact  is  purely  immaterial  (x),  or  where  the  pre- 

(r)   Berryman   v.    Wise,  4  T.  R.  366;        (/)  See  the  observations  of  Bayley,  J.  in 

and  see   Smith  v.    Taylor,   IN.  R.  196.  4  M.  &  S.  548;  and  note,  that  though  the 

Where  the  plaintiff  alleged,  generally,  that  information  alleged  that  outrages  had  been 

he  was  an   attorney,  and   the  words  were,  committed  hi  and   in   the  neighborhood  of 

"  He  is  a   pettifogging,  blood  sucking  at-  Nottingham,  it  was  held    that   the  allega- 

.  torney;"  it  was  ruled   that  no   extrinsic  tion  was  divisible,  and  that   it  was  not  ne- 

evidence  to  prove  the  plaintiff  to  be  an  at-  cessary  to  prove    that   outrages   had   been 

torney  was  necessary,     Armstrong  v.  Jor-  committed  in  both  places. —  lb. 
dan,  Cor.  Hullock,  B.  Carlisle  Sum.  Ass.         («)  Supra,  vol.  I,  405. 

1826-  (x)  Supra,  ib.  406. 

(s)   Yrissair  v.  Clement,  3  Bing.  432. 

[1]  So  where  the  defendant  in  imputing  a  crime  to  the  plaintiff,  spoke  of  him  as  The 
Reverend  A.  B.,  it  was  held  that  the  words  used  were  equivalent  to  an  admission,  that 
the  plaintiff  was  a  Clergyman.     Cummen  v.  Smith,  2  Serg.  and  Rawle,  440. 


PUBLICATION'.  12 

fatory  subject  matter  is  in  its  nature  divisible,  and  BO  much  is  prov- 
ed as  would,  had  it  been  alleged  without  more,  have  been  suffi- 
cient ( y ). 

2dly.  A-  to  the  fact  of  publication.  Where  the  action  is  for 
words  spoken,  evidence  of  the  Bpeaking  before  any  third  person 
will  be  sufficient,  though  the  declaration  allege  them  to  have  been 
spoken  before  A.  I!,  and  others  (c).  And  where  the  words  arc  in 
themselves  actionable,  it  is  sufficient  to  prove  sonic  of  them,  which 
are  actionable,  provided  they  be  proved  as  laid  (a). 

If  the  words  be  spoken,  or  libel  published,  in  a  foreign 
language,  or  in  characters  not  understood  *by  those  who     [   '13   j 
hear  or  see    them,  there  is  no  publication,  since  there  is 
no  communication  prejudicial   to  the  plaintiff;  and  if  the  words  be 
spoken,  or  libel   addressed,  to  the  plaintiff  only,  without  further 
publication,  no  action   is  maintainable,  since  no  temporal  dami 
can  have  accrued  from  the  defendant's  act  (&),  but  a  publication 
to  the  prosecutor  only  would  be  sufficient  to  sustain  an  indictment 
on  the  ground  of  its  tendency  to  produce  a  breach  of  the  peace  (c), 

Where  a  witness,  who  has  heard  scandalous  words  spoken,  has 
committed  them  immediately  to  writing,  he  may  afterwards  read 
the  paper  in  evidence,  if  he  swear  that  the  words  con- 
tained in  it  arc  the  very  words  (d)  ;  and  if  the  *words         *14  ] 
have  not    been  written  immediately,  the   witness  may 
refer  to  his  minutes  to  refresh  his  memory  (e). 

In  case  of  libel,  before  any  evidence  can  be  given  of  its  contents, 
prima  facie  evidence  must  be  given  of  a  publication  by  the  defend- 
ant. Evidence  of  a  publication  is  cither  of  a  publication  generally , 
or  of  a  publication  in  some  particular  county  or  place,  and  it  is 
either  direct  or  indirect. 

To  support  a  civil  action  it  is  essential,  as  has  already  been  ob- 

(y)  Supra,  ib.  407.  that  the  indictment  could  not  be  supported, 
(=)   B.N.  P.  5.  and   that   it  should   have  been  alleged  to 
(a)  2  East,  434,  8  T.  R.  150,  supra,  300,  have  been  published  with  intent  to  provoke 
(0)   1  Will.  Saun.  132,   n.   2.     Phillips  the  prosecutor  and  excite  him  to  commit  a 
v.  Janf.cn,  2  E.sp.  C.   226,  and  see  Hick's  breach  of  the  peace;  and  that  where  a  let- 
case,  Hob.  215.     R.    v.     Wegener,  2  Star-  ter  containing  a  libel  is  sent  to  the  wife,  it 
kie's  C.  245.  ought  to  be  alleged  to  have  been  published 
(c)  But  where  a  libel,  reflecting  on   the  with  the  intent  to  disturb  the  domestic  har- 
prosecutor   in   his  profession   as  a   solicit-  mony   of  the  parties.     R.    v.     \\ 'ejener,  2 
or,  was  sent  as  a  letter,  and   published  to  Starkie's  C.  -\ ■<. 

the  prosecutor  alone,  and   the   indictment  (d)  Per  Huh,  C.   J.    Sandwell  v.  Sand- 

alleged  that  it  was  published  with  intention  well,  Holt.  R.  295. 

to  injure  the  prosecutor  in   his   profession  (c)  Holt's  R.  205. 
as  a  solicitor,  it  was  held  (by  Abbott,  J.) 


14  CIVIL  REMEDY— EVIDENCE. 

served,  to  prove  a  publication  of  the  libel  to  some  third  person  (/) 
[1].  Bat  where  the  defendant,  knowing  that  letters  addressed  to 
the  plaintiff  were  usually  opened  and  read  by  his  clerk,  wrote  a 
libellous  letter  and  directed  it  to  the  plaintiff  and  his  clerk  received 
and  read  it,  it  was  held  that  there  was  a  sufficient  publication  to 
support  the  action  (g*). 

The  publication  may  be  directly  proved,  by  evidence  that  the 
defendant,  with  his  own  hand,  distributed  the  libel,  or  exposed  its 
contents,  or  painted  an  ignominious  sign  over  the  door 
[  *15  ]  *of  another,  or  took  part  in  a  procession  carrying  a  rep- 
resentation of  the  plaintiff  in  effigy  for  the  purpose  of  ex- 
posing him  to  contempt  and  ridicule,  or  by  evidence  of  his  mali- 
ciously reading  or  signing  the  contents  of  the  libel  in  the  presence 
of  others;  all  of  which  facts  are  direct  proof  of  the  averment  that 
the  defendant  published  the  alleged  libel  (A).  But  it  frequently 
happens  that  no  direct  proof  can  be  given  of  the  defendant's  agency 
in  the  publication  of  the  libel,  and  resort  must  be  had  to  indirect 
evidence,  in  order  to  connect  him  with  the  libel  and  fix  him  with 
its  publication.  The  most  usual  and  important  piece  of  evidence 
for  this  purpose  consists  in  proving  that  the  libel  published  is  in 
the  hand-writing  of  the  defendant ;  when  the  plaintiff  has  proved 
this,  he  has  made  out  such  a  prima  facie  case  as  entitles  him  to 
have  the  contents  read  in  evidence  (T). 

It  was  observed  by  a  great  authority  (&),  that  "When  a  libel  is 
produced  written  in  a  man's  own  hand,  he  is  taken  in  the  mainer, 
and  that  throws  the  proof  upon  him  ;  and  if  he  cannot  produce  the 
composer,  the  verdict  will  be  against  him." 

The  grounds  of  this  presumption  are  plain  and  reason- 

[  *16  ]     able.     *j\to  man  incurs  any  civil  responsibility  by  what 

he  thinks  or  even  writes,  unless  he  divulge  his  thoughts 

to  the  temporal  prejudice  of  another  ;  but  it  seems  to  be  equally 

clear,  in  point  both  of  law  and  expediency,  that  if  he  write  what  is 

(/)  Supra,  vol.  11,  13.  Where  a  libel,  (g)  Delacroix  v.   Thevenot,  2  Starkie's 

contained  in  a  letter  folded,  but  not  sealed,  C.  63. 

was  delivered  to  a  third  person,  to  be  con-  (/i)  5  Rep.  125.     9  Rep.  59,  b. 

veyed  to  the  plaintiff,  and  was  so  conveyed  (£)  Burr.  2689. 

without  having   been  read  by  any  one,  it  (AM  Per  Holt,  C.   J.  R.  v.    Beere,   Ld. 

was  hell  that  no  action  could  be  supported.  Ray.  417.     Mullet  v.  Hulton,  4   Esp.   C. 

Cluiterbuck  v.  Chaffers,  2  Starkie's  C.  471.  248. 

[1]  So  where  a  sealed  letter  was  delivered  to  the  plaintiff  unopened,  it  was  held  that 
the  action  did  not  lie.     Lijle  v.  Clason,  1  Caines,  581. 


PUBLICATION. 


16 


false,  and  the  calumny  become  public  to  the  detriment  of  its  object, 
he  is  just  as  responsible  for  the  effects  of  his  negligence  as  if  he  had 
been  the  voluntary  publisher  of  the  scandal  :  and  that,  if"  a  man 
write  libels  for  his  own  perusal,  he  must  be  content  to  enjoy  the 
satisfaction,  diminished  by  the  risk  and  peril  of  an  accidental  pub- 
lication and  its  consequences  (/) . 

The  writing  a  libel  (m)  does  not,  however,  in  any  case,  amount 
to  a  publication,  but  is  mere  evidence  from  which  it  may  be  infer- 
red. What  amounts  to  a  publication  is  nsually  a  question  of  fact 
falling  within  the  province  of  the  jury  to  decide  (n),  and  though 
proof  that  the  libel  is   in  the  'hand-writing  (o)  of  the  party,  goes 


(/)   Supra,  vol.  I.  225. 

(in)  Lamb's  case,  9  Rep.  59.  15  Via. 
Abr.  91.     Mod.  813. 

(n)  Baldwin  v.  Elphinstone,  Bl.  R. 
1037;  that  is,  it  is  a  question  for  the  jury 
in  doubtful  cases,  whether  there  has  in 
fact  been  any  publication  of  the  libel  to  a 
third  person;  but,  where  the  facts  are 
clear,  the  question  of  publication  is  one  of 
law  for  the  decision  of  the  court.  If  (in 
an  action  for  damages)  the  facts  were  that 
the  defendant  had  posted  up  a  libel  in  a 
public  place,  but  had  taken  it  down  again 
before  any  one  had  read  it,  there  would  in 
point  of  law  be  no  publication;  but  if  it 
were  doubtful  whether,  before  it  was  taken 
down  some  one  had  not  read  it,  that  would 
be  a  question  of  fact  for  the  jury.  See 
Starkie  on  Evidence,  tit.  Law  and  Fact. 
Delacroix  v.  Thevenot,  2  Starkie's  C.  03. 
Clullerbvckv.  Chaffers,  1  Starkie's  C.  471. 

(o)  The  best  evidence  to  prove  the  hand- 
writing in  question,  is  that  of  a  witness 
who  actually  saw  the  party  write  it;  such 
direct  evidence  can,  however,  seldom  be 
procured;  and,  in  general,  to  prove  the 
handwriting  of  a  person,  any  witness  may 
be  called  who  has  by  sufficient  means  ac- 
quired such  a  knowledge  of  the  general 
character  of  the  handwriting  of  the  party, 
as  will  enable  him  to  swear  to  his  belief 
that  the  handwriting  in  question  is  the 
handwriting  of  that  person ;  B  N.  P.  230. 
Lord  Ferrers  x.  Shirley,  Fizg.  195. 

This  knowledge  of  the  general  character 
of  the  party's  handwriting,  may  have  been 


acquired  from  having  seen  him  write,  al- 
though but  once,  Garrets  v.  Alexander,  4 
Esp.  C.  37;  or,  if  the  witness  has  never 
seen  him  write,  it  is  sufficient  if  he  has  ob- 
tained a  knowledge  of  the  character  of  the 
handwriting  from  a  correspondence  with 
the  party  upon  matters  of  business,  or 
from  any  other  transactions  between  them, 
as  from  having  paid  bills  of  exchange  ac- 
cording to  his  written  directions,  and  for 
which  he  afterwards  accounted.  And  when 
letters  are  sent  to  a  particular  person,  on 
particular  business,  and  an  answer  i3  re- 
ceived in  due  course,  a  fair  inference  arises 
that  the  answer  was  sent  by  the  person 
whose  handwriting  it  purports  to  be.  Per 
Lord  Kenyon,  Cary  v.  Pilt,  Peake's  L.  E. 
105.  For  when  letters  are  so  written  in 
the  usual  and  ordinary  course  of  business, 
it  is  reasonable  to  presume  that  they  were 
really  written  by  the  person  by  whom  they 
purport  to  have  been  written,  and  that 
they  have  not  been  fabricated  to  answer  a 
particular  purpose.  In  such  case  it  is  ob- 
viously essential,  that  the  identity  of  the 
correspondent  whose  letters  have: 
ceived,  with  the  party  whose  handwriting 
is  to  be  proved,  should  be  established, 
either  by  the  witness  who  received  the  let- 
ers,  or  by  other  reasonable  evidence. 

In  the  case  of  Lord  Ftners  v.  Shirley, 
Fitzg.  195,  where  the  issue  was  upon  the 
execution  of  a  deed  by  Lord  Ferrers,  a 
-  was  called  to  prove  the  handwriting 
of  Cottington,  a  subscribing  witness,  who 
was  dead:  he  stated  that   his   master  had 


1G 


CIVIL  REMEDY— EVIDENCE. 


r  *17  '      far  in  fixing  him  with  the  publication,  he  is  still  at  liberty 
[  *18  ]     to  *rebut   the  strong    presumption  thus  raised   against 

him,  by  reconciling  the  fact  with  his  innocence. 
[  *19]         *Hand-writing  must  be  proved  by  those  who  know  the 

general  character  of  the  hand-writing  of  the  party,  and 
[  *20  ]      not  by  comparison  of  hands,  for  *jurors  may  not,  it  is 

said,  be  competent  to  make  the  comparison  (p)  ;  this 


held  an  estate  under  the  late  Lord  Ferrers, 
and  that  he  had  seen  several  letters  appear- 
ing to  have  been  written  by  Cottington  for 
the  rent  of  the  estate,  and  that  his  master 
had  told  him  that  they  were  the  letters  of 
Cottington,  Earl  Ferrer's  steward.  The 
court,  in  this  instance,  rejected  the  witness, 
because  he  could  not  prove  the  identity  of 
Cottington,  Fitzg.  195;  but  Lord  Raymond 
said  that  it  was  not  necessary,  in  all  cases, 
that  the  witness  should  have  seen  the  party 
write,  to  whose  hand  he  swears;  for  where 
there  has  been  a  fixed  correspondence  by 
letters,  and  it  can  be  made  out  that  the 
party  writing  is  -the  same  man  that  attested 
the  deed,  it  will  enable  the  witness  to 
swear  to  that  person's  handwriting,  al- 
though he  never  saw  him  write.  And 
Page,  J.  said,  if  a  subscribing  witness  to  a 
deed  live  in  the  West  Indies,  whose  hand- 
writing is  to  be  proved  in  England,  a  wit- 
ness here  may  swear  to  his  handwriting, 
by  having  seen  the  letters  of  such  person, 
written  by  him  to  his  correspondent  in 
England;  because,  under  the  special  cir- 
cumstances of  that  case,  there  is  no  other 
way,  or  at  least  the  difficulty  will  be  great 
of  proving  the  handwriting  of  such  sub- 
scribing witness.  The  court  iu  this  case 
rejected  the  testiroon}',  not  on  account  of 
the  insufficiency  of  the  evidence  to  prove 
the  handwriting  to  be  that  of  the  person 
who  had  written  the  letters  demanding 
rent,  but  because  the  identity  of  that  per- 
son with  Cottington,  the  attesting  witness, 
had  not  been  made  out. 

The  mere  seeing  the  superscription  of 
letters,  at  the  post-office,  purporting  to 
have  been  franked  by  the  party,  is  not  a 
sufficient  foundation  for  this  kind  of  evi- 
dence, Cary  v.  Pitt,  Peake's  Ev.  105.  And 


see  Lord  Ferrers  v.  Shirley,  Fitz.  195,  for 
the  superscription  may  have  been  forged. 
A  witness  who  swears  to  his  belief  of  hand- 
writing, must  form  his  judgment  from  his 
recollection  of  the  general  character  of  the 
handwriting  of  the  party,  and  not  from 
any  extrinsic  or  collateral  circumstances. 
Mr.  Caldecot  was  allowed  to  state  his  belief 
that  the  handwriting  was  not  that  of  Mr. 
Mickle,  the  author  of  the  Luciad,  because 
he  was  a  very  correct  man  in  making  capi- 
tal and  small  letters  where  such  were  re- 
quired; and  in  the  writing  produced,  that 
correctness  was  not  observed,  for  the  ob- 
servation arose  from  the  character  of  the 
handwriting  itself.  See  Dacosta  v.  Pym, 
Appeal  to  Peake's  L.  E. 

But  iu  the  same  case,  of  Dacosta  v.  Pym, 
the  witness  saying  that  the  handwriting 
was  like  the  plaintiff's  but  that  he  did  not 
think  it  was  his,  because  the  plaintiff  was 
too  much  a  man  of  the  world  to  sign  such 
an  account;  Lord  Kenyon  held,  that  the 
answer  was  improper,  and  that  the  wit- 
ness ought  to  found  his  opinion  upon  the 
character  of  the  handwriting  only. 

Where  the  witness  had  never  seen  the 
defendant  (who  was  sued  as  the  acceptor 
of  a  bill  of  exchange,)  write  his  name,  till 
after  the  commencement  of  the  action,  and 
then  only  for  the  purpose  of  showing  him 
the  difference  between  his  handwriting  and 
that  of  the  acceptance  to  the  bill,  his  testi- 
mony was  held  to  be  inadmissible.  1  Esp. 
C.  14,  15.     Vide  4  Esp.  C.  27. 

(/))  By  comparison  of  hands  is  now 
meant  a  comparison  by  the  juxta-position 
of  two  writings,  in  order  by  such  compari- 
son to  ascertain  whether  both  were  written 
by  the  same  person;  Drookbard  v.  Wood- 
ley,  Peake's  C.  21.  Mucphcrson  v.  Thoytes 


PUBLICATION. 


reason,  however,  is  not   satisfactory;  for  if  the  jurors       "  *21  ] 
cannot  read,  they  may  neverthel  iv  !  the  evidence 


Peake's  C.  20.  Stranger  v.  Secrle,  1  Esp. 
C.  11.  GoodtilU  v.  Braham,4  T.  EL  197. 
Here  it  may  be  observed,  thai  snob  evidence 
a9  is  now  deemed  to  be  receivable  and  legal 
evidence  of  handwriting,  as  ili-t inct  from 
evidence  by  compiiriscn  of  li  inds,  Beems 
formerly  to  bave  been  considered  as  evi- 
dence by  comparison  of  hand9,  and  as  in- 
admissible, at  least  in  criminal  cases.  In 
the  case  of  Algernon  Sidney,  8  St.  Tr. 
802,  3  Car.  IT.  two  of  the  witnesses  who 
swore  to  their  belief  of  his  handwriting  bad 
seen  him  write,  ami  the  third  had  pai  1 
bills  purporting  to  have  been  endorsed  by 
the  defendant  Yet  the  prisoner,  in  his 
defence,  insisted  that  nothing  but  compari- 
son of  handwriting  had  been  offered  in 
evidence  against  him.  And  the  statute  re- 
versing his  attainder,  recites  that  there  had 
not  been  sufficient  legal  evidence  of  any 
treasons  committed  by  him,  there  being 
produced  a  paper  found  in  his  closet,  sup- 
posed to  be  his  handwriting,  but  which  was 
not  proved  by  any  one  witness  to  have 
been  written  by  him,  but  that  the  jury 
were  directed  to  believe  it  by  comparing 
it  with  other  writings  of  his  So  also  in  the 
celebrated  case  of  the  Seven  Bisliojix,  I 
Jac.  II.  4  St.  Tr.  338.  Sir  Thomas  Exon 
stated,  that  he  had  never  seen  the  Arch- 
bishop of  Canterbury  write  five  times  in 
his  life,  but  that  he  believed  one  of  the 
signatures  on  that  paper  produced  to  have 
been  written  by  the  archbishop. 

Mr.  i'  i  •■•  1    that  he  b<  lieved  an- 

other signature  to  have  been  written  by  the 
Bishop  of  Ely;  but,  mien  crosses  anima- 
tion, it  turned  out  that  his  belief  wis 
founded  upon   the   re  b  the 

writing  bore  to  th  it  c  n  I  dned  in  a  letter 
sent  to  the  Bishop  of  Oxford,  which  letter 
the  witness  concluded  to  have  been  written 
by  the  Bishop  of  Ely,  from  bavin,'  waited 
upon  him  with  the  Bishop  of  Oxford's  an- 
swer, and  communicated  with  him  on  the 
subject  of  the  original  letter. 

Upon  this  evidence,  Mr.  Justice  Powell 
observed,  "  That's  a  strange  inference, 
Mr.  Solicitor,   to  prove  a   man's   hand." 


Mr.  Attorney  General — ''  We  hive  more 
,  but  let  this  go  as  jar  as  it  can  " 
Mr.  Serjeant  Pemberton — "  Certainly,  my 
.  ih  a  witness 
as  this."  Lord  C.  d.  Wright—"  Brother 
Pemberton,  1  suppose  they  can  prove  it 
otherwise,  or  else  this  is  not  evi  lenoe." 

Alter  some  other  evidence  had  been  given 
Mr.  Justice  Powell  observed,  "  Mr.  Solicit- 
or, I  think  yon  have  not  sufficiently  | 
this  paper  to  be  subscribed   bj  my  Loi  Is 
the  Bishops."  Mr,  S  leral,  "  Not 

to  read  it,  sir?  " — Mr.  J.  PoWl  11,  "  No, 
not  to  read  it:  it  is  too  slender  a  proof  for 
such  a  case.  I  grant  yon,  in  civil  actions, 
a  Blender  proof  is  sufficient  to  make  out  a 
man's  hand,  by  a  letter  to  a  tradesman  or 
a  correspondent,  or  the  like;  but  in  crimi- 
nal cases,  (such  as  this  is,)  if  such  a  proof 
be  allowed,  where  is  the  safety  of  your 
life,  or  any  man's  life  here?" — Mr.  So- 
licitor General,  "  We  tell  you  a  case 
it  was  allowed,  and  that  is  Mr.  Sidney's 
case — .i  case  of  treason,  and  printed  by 
authority.  We  tell  you  nothing  but  what 
was  done  the  other  day." 

L.  C.  J.  Wright— "I  tell  you  what  I 
say  to  it;  I  think  truly  there  is  proof 
enough  to  have  it  real,  and  I  am  not 
ashamed  nor  afraid  to  say  it,  for  I  know  I 
speak  with  the  law,  say  what  you  will  of 
criminal  cases  and  the  danger  of  people's 
lives;  there  were  more  dangers  to  the  gov- 
ernment, if  Buch  proof  were  not  I 
good." — Mr.  J.  Powell  "  I  think 
there  is  no  danger  to  the  given; 
all,  in  requiring  good  proof  against  of- 
fenders."—  Lord  C.  J.  — "  Here's  i 
Archbishop,  an  It  f  St.  As  iph, 
andmy  Lord  of  Ely;  their  hands 

it    is  proved  to    be    my    L  ishop'S 

writing  by  Mr  Brookes;  and  he  proves  my 
Lord  of  Ely's  hand  by  e  ;  and  so 

Lord  of  a-  iph's.  Now.  brother  Pem- 
berton, there's  an  answer  to  your  objection. 
it  being  proved  that  it  is  all  my  Lord  Arab- 
's handwriting;  then  they  0 
say,  '  We'll  prove  the  hands  of  the  others 
by  comparison ;  and  for  that  they  bring 


21 


CIVIL  REMEDY— EVIDENCE. 


*22  ]     *of  witnesses  who  are  able  to  make  the  comparison.     It 
[  *23  ]     has  also  been  suggested,  *that  if  such  a  comparison  were 


you  witnesses,  that  say,  they  have  received 
letters  from,  and  seen  their  handwriting 
several  times;  and  comparing  what  they 
have  seen  with  this  very  paper,  says  the 
witness,  '  I  do  believe  it  to  be  his  hand.' 
Can  there  be  a  greater-  evidence  or  a 
fuller." — Mr.  Serjeant  Pemberton — "  Ad- 
mit it  to  be  full  evidence  against  my  Lord 
Archbishop;  -what's  that  to  the  rest? 
There's  no  evidence  against  them." — Mr. 
Justice  Allybone — "  Brother  Pemberton, 
as  to  the  objection  you  make  of  comparing 
hands,  it  is  an  objection  indeed,  I  do  agree; 
but  then  consider  the  inconvenience  which 
you  and  Mr.  Polexfen  do  so  much  insist 
upon.  If  a  man  should  be  accused  by  a 
comparison  of  hands  where  is  he;  he  is  in 
a  most  lamentable  case,  for  his  hand  may 
be  so  counterfeited,  that  he  himself  may 
not  be  able  to  distinguish  it. — But  then 
you  do  not  consider  where  you  are,  on  the 
other  side;  that  may  be  an  objection  in 
matters  of  fact,  that  will  have  very  little 
weight,  if  compared  and  set  altogether. 
For  on  the  other  side,  where  shall  the  gov- 
ernment be,  if  I  will  make  libels,  and  tra- 
duce the  government"  with  prudence  and 
discretion,  and  all  the  secrecy  imaginable: 
I'll  write  my  libel  by  myself,  prove  it  as 
you  can.  That's  a  fatal  blot  to  the  gov- 
ernment, and  therefore  the  cases  are  not 
the  same,  nor  is  your  doctrine  to  pass  for 
current  here,  because  every  case  depends 
upon  its  own  facts.  If  I  take  upon  me  to 
swear  I  know  your  hand,  the  inducements 
are  to  myself,  how  I  came  to  know  it,  so  as 
to  swear  to  it.  Knowledge  depends  upon 
circumstances;  I  swear  that  I  know  you 
but  yet  I  may  be  under  a  mistake,  for  I 
can  have  my  knowledge  of  you  no  other 
way  but  from  the  visibility  of  you.  And 
another  man  may  be  so  much  like  you, 
that  there  is  a  possibility  of  my  being  mis- 
taken: but  certainly  that  is  evidence, 
good  evidence.  Now  here  are  several  gen- 
tlemen that  swear  as  to  my  Lord  Arch- 
bishop's handwriting.     I  do  agree   as  to 


some  of  the  others,  that  the  evidence  is  not 
so  strong  for  what  that  man  said,  that  he 
did  believe  it  was  rather  such  a  lord's 
hand,  than  that  which  went  before,  or  that 
which  came  after,  it  is  of  no  weight  at  all, 
and  so  some  of  the  others,  but  it  is  posi- 
tively proved  against  my  Lord  Archbishop. 
And  one  or  two  more,  so  that's  enough  to 
induce  the  reading  of  this  writing." 

Mr.  Justice  Holloway — "  Good,  my  Lord, 
let  me  give  my  opinion." — Lord  G.  J. — 
"  With  all  my  heart,  brother." — Mr.  J. 
Holloway — "  My  Lord,  I  think,  as  this 
case  is,  there  ought  to  be  a  more  strong 
proof;  for  certainly  the  proof  ought  to  be 
stronger  and  more  certain  in  criminal 
matters  than  in  civil  matters.  In  civil 
matters  we  do  go  upon  slight-  proof,  such 
as  the  comparison  of  hands  for  proving  a 
deed,  or  a  witness's  name,  and  a  very 
small  proof  will  induce  us  to  read  it;  but 
in  criminal  matters  we  ought  to  be  more 
strict,  and  require  positive  and  substantial 
proof,  that  is  fitting  for  us  to  have  in  such 
a  case,  and  without  better  proof,  I  think  it 
ought  not  to  be  read." 

L.  G.  Justice — ' '  You  must  go  on  to  some 
other  proof,  Mr.  Solicitor,  for  the  court  is 
divided  in  their  opinions  about  this  proof." 

The  defendant*  having  committed  a  riot 
upon  the  person  of  Sir  F.  W.  in  his  own 
house,  an  information  was  filed  against 
him,  and  he  produced  a  witness  to  swear  to 
the  contents  of  a  letter  from  the  prosecutor, 
who  deposed  it  was  in  the  same  hand  with 
another  letter  which  had  been  admitted  to 
be  read  in  evidence.  But  Holt,  C.  J.  said, 
"  In  the  case  of  a  deed  lost  or  burnt,  we 
will  admit  a  copy  or  counterpart,  or  the 
contents  to  be  given  in  evidence;  but  we 
never  permit  it  unless  it  be  proved  that 
there  was  such  a  deed  executed.  Now 
here  the  witness  cannot  prove  this  letter 
written,  for  he  never  had  seeji  the  prosecu- 
tor write,"  and  therefore  it  was  disallowed. 

In  Crosby's  case,  12  Mod.  72,  Holt, 
753.  Salk.  689,  Ld.  Raymond,  39,  which 


[*)  R.  v.  Sir  T.  Culpepper,  Holt's  R.  293. 


PUBLICATION.  24 

to  be   allowed,  an   unfair  selection  of  specimens  might  be  made 
for  "the  purpose   of  comparison ;  this,  however,  would 
be  open  to  inquiry  and  observation,  and  ily  seems        *25   j 

to  be  a  ground  for  the  total  exclusion  of  ^uch  evi- 
dence; and,  perhaps,  after  all,  the  most  satisfactory  reason  is, 
that  if  Buch  comparisons  were  to  ,|"  allowed,  it  would  open  the  door 
to  the  admission  of  a  great  deal  of  collateral  evidence,  which  might 
branch  out  into  a  very  inconvenient  Length  :  for,  in  every  <-asc,  it 
would  be  necessary  to  go  into  distinct  evidence,  to  prove  each  spe- 
cimen produced  to  be  genuine  ;  and  even  in  support  of  a  particular 
specimen  (if  the  present  rule  were  to  be  broken  through)  evidence 
of  comparison  would  be  receivable  in  order  to  establish  the  speci- 
men,and  so  the  evidence  might  branch  out  to  an  indefinite  extent. 
The  ordinary  practice  is  seldom  attended  with  inconvenience  ;  for 
if  the  hand-writing  be  not  that  of  the  party,  it  is  more  easy  for 
him  to  disprove  it  than  it  would  be  for  his  adversary  to  prove  it  in 
case  it  were  genuine  ;  for  it  must  be  within  his  own  peculiar  know- 
ledge what  witnesses  have  so  intimate  an  acquaintance 
with  his  hand-writing  as  to  be  able  to  prove  the  "forgery  ;  |  *26  ] 
but  where  it  is  genuine  his  adversary  has  the  witnesses  to 
seek  for.  It  cannot,  however,  be  denied,  that  abstractedly,  a  wit- 
ness is  more  likely  to  form  a  correct  judgment  as  to  the  identity  of 
hand-writing  by  comparing  it  critically  and  minutely  with  a  fair  and 
genuine  specimen  of  the  party's  hand-writing,  than  he  could  be  able 
to  make  by  comparing  what  he  sees  with  the  faint  impression  made 
by  having  seen  the  party  write  but  once,  and  then,  perhaps,  under 
circumstances  which  did  not  awaken  his  attention. 

In  some   instances,  where   the   antiquity  of  the  writing  make-  it 
impossible  for  any  living  witness  to  swear  that  he  ever  saw  the  party 

was  a  trial  before  Holt,  C  J.  for  high  trea-  that  lie  attempted  to  go  with  certain  papers 

bod,  Beveral  treasonable  papers  were  pro-  into  France,  and  where   they  were  found 

duced,  which  the  witnesses  swore  they  be-  upon  his  penon;  but  that,  in  the  principal 

Lieved  to  be  in  the  handwriting  of  the  pris-  case,  since  they  were  found  elsewhere,  to 

oner.     And  on  this  a  question  arose,  whe-  convict  on  a  similitude  of  hands,  would  be 

ther  competition   of  hands   was   evidence,  to  run  into  the  error  of  Co/.. 

And  the  court  held,  that  though  it  was  nol  case.     Upon  this  trial,  the  prisoner  pro- 

Bufficient  for  the  original  foundation  ol  an  duced  a  copy  of  the  act  of  parliament  for 

attainder,  it  might  be  well   used  as  a  cir-  the  reversal  of  Sidney's  attainder,  ur  which 

cumstantial  and  confirming  evidence^ ,  if  it  is  declared  that  the  comparison  of  hands 

the  fact  he  otherwise  fully   proved,  as  in  is  not  legal  evidence 
Lord  Preston's  case,  where  it  was  proved 

[t]  Bee  the  cases  of  Layer,  LI.  Preston,  Algernon  Sidney,  St.Tr.and  of  Buchanan, 
aud  Dr.  Hensey,  1  Bur.  G42,  and  the  trial  of  O'Connor  and  others,  at  Maidstone. 

Vol.  II.  3G 


26  CIVIL  REMEDY— EVIDENCE. 

write,  comparison  of  hand-writing  with  documents  known  to  be  in 
his  hand-writing  has  been  admitted  (7). 

In  the  case  of  Revett  v.  Braliam  (V),  a  clerk  from  the  post  office, 
who  had  been  employed  to  inspect  franks  and  detect  forgeries,  was 
admitted  on  a  trial  at  bar  to  give  his  opinion,  as  a  matter  of  skill 
and  judgment,  whether  a  will  was  written  in  a  natural  or  imitated 
character.  He  admitted,  in  his  examination,  that  he  had  never  de- 
tected an  imitation  of  the  hand- writing  of  an  old  person 
[  *27  "  *who  wrote  with  difficulty,  and  who  might  be  supposed 
frequently  to  stop  ;  and  that  he  judged  principally  by 
seeing  whether  the  letters  were  what  is  called  painted,  or  passed 
over  by  the  pen  a  second  time,  which  might  happen  to  any  person 
from  a  failure  of  ink.  After  giving  it  as  his  opinion  that  the  will 
was  not  genuine,  a  paper  was  produced,  admitted  to  have  been 
written  by  the  person  suspected  of  having  forged  the  will,  and  he 
was  asked  his  opinion  whether  that  paper  and  the  will  had  been 
written  by  the  same  person,  and  the  question  was  objected  to,  but 
admitted  by  the  court.  But,  in  the  case  of  Car//  v.  Pittas'),  Lord 
Kenyon  refused  to  admit  the  testimony  of  an  inspector  of  franks  at 
the  post  office,  to  prove  that  the  hand-writing  of  the  acceptance  of 
a  bill  of  exchange  purporting  to  be  the  defendant's,  was  genuine  ; 
saying,  that  although  such  evidence  had  been  received  in  the  case 
of  Revelt  v.  Braham  (/),  yet  that,  in  his  charge  to  the  jury,  he  had 
laid  no  stress  upon  it.  And  in  the  case  of  the  Xing'  v.  Calor(u), 
an  inspector  was  admitted  to  swear  (v~)  that  the  libel  was  written 
in  a  disguised  *hand ;  but  he  was  not  allowed  to  give 
[  *28  ]  his  opinion  upon  a  comparison  of  the  libel  with  another 
writing,  whether  they  had  been  written  by  the  same 
person . 

The  same  rules  which  apply  to  the  proof  of  handwriting  in  civil, 
apply  also  to  evidence  in  criminal  proceedings   (a;),  although,  for- 

(q)  By  Le  Blanc,  J.     Roe  v.  Raivlings,  fused  to  grant  a  new  trial,  on  the   ground 

7  East,  282,  B.  N.  P.  286.     See  also  Ta.y-  that  such  evidence  had  been  rejected  at  the 

lor  v.  Cooke,  8  Price,  GG3.  trials,    Gurney  v.  Longlands,  5  B.   &  A. 

(r)  4  T.  R.  497.  330. 

(s)  Peake's  L.  E.  Append.  (*)  Francia's  case,  6  St.  Tr.  70.    Lay- 
it)  4  T.  R.  497.  er's  c"se>  Ibid.  275.  R.  v.  Hensey,  1  Burr. 
(u)  4  Esp.  C.  117.  644.     Ld.  Preston's  case,   4   St.   Tr.  446. 
(v)  In  a  late  case,  evidence  of  the  opinion  De  La  Motte's  case,  Howell's  Eq.  2  T.  R. 
of  an  inspector  of  franks  at  the  post-office,  St-  Tr-  vo1-  21,  810.     The  Attorney  Gene- 
whether  the  writing  was  in   a  natural  or  ral  v.  Le  Merchant,  2  T.  R.  201,  note  (a), 
imitated   character,  'was  held  to  be  of  so  B-  N>  P-  236-    R-  v-  Caior<  4  EsP-  C'  117" 
little  weight,  that  the  court  of  K.  B.  re- 


PUBLICATION.  28 

mcrly,  the  rule  in  criminal  cases  was  more  rigid  than  in  civil  ac- 
tions (//)  [1]. 

The  wilful  and  intentional  delivery  of  a  libel,  l>y  way  of  sale  or 
otherwise,  as  by  a  bookseller  or  hawker,  is  a  sufficient  publication, 
though  the  party  bo  publishing  did  not  know  the  con- 
tents I  :  ).     *So  a  printer  is  liable,  though  he  printed  a      [  '-'•'  J 
libel  in  the  way  of  his  trade  (a). 

A  defendant  may  be  guilty  of  publishing  a  libel  not  only  by  dis- 
tributing  copies  of  it  with  his  own  hand,  but  by  employing  an  agent 
for  the  purpose  (/>)• 

The  declaration  generally  avers,  that  the  defendant  published  and 
caused  to  be  published  ;  but  the  latter  words  seem  to  be  perfectly 
unnecessary,  either  in  a  civil  or  criminal  proceeding;  in  civil  pro- 
ceedings, the  principal  is  to  all  purposes  identified  with  the  agent 
employed  by  him  to  do  any  specific  act,  and  in  treason  and  misde- 
meanors (Y)  all  accessories  arc  considered  as  principals. 

A  consent  by  the  master  to  the  act  of  the  servant  in  printing  a 
libel,  is  prima  facie  evidence  of  a  publication  by  the  master  (//). 

An  allegation  that  the  defendant  published  the  libel 
is  satisfied  by  proof  that  it  was  established  by  his  agent  (<?)     [  *30  ] 
if  an   authority  from  the  principal  to  the  agent  can  be 
proved  ;  and  although  an  authority  to  commit  an  unlawful  act  will 
not  in  general  be  presumed,  yet  it  is  otherwise  in  the  case  of  book- 

(y)  Per  Kelynge,    C.    J.     Carr's  case,  publication,  though  it  does  not  appear  that 

and  4  St.  Tr.  338.  he  knew  of  any   such  book  being  there,  or 

(z)   Wood's  Inst.  431.     Moore,  G27.     It  what  the  contents   thereof  were,  and  that 

is  said,  "  It   is   not   material  whether   the  it  will  not   be   presumed    that   they  were 

person  who  disperses  libels   is   acquainted  brought  there  by  a  stranger;  but  the  nms- 

witli   their  contents  or  otherwise,  for  that  ter,  if  he  suggests  any   thing  of  this  kind 

nothing  would  be  more   easy  than  to. pub-  in  his  excuse,  must  prove  it."     Bae.  Ab. 

lish   the   most   virulent    papers   with   the  tit.  Libel,  458. 

greatest  security,  if  the  concealing  the  pur-  (a)  R-  v.  Dover,  \c,  C.  II.     2  St.  Tr. 

port  of  them  from  an  illiterate  publisher,  ">47,  Hargreave's  ed. 

would  make  him  safe  in  dispersing  them.  (b)  7  East,  63.   Bao.  Ab.  tit.  Libel,   158. 

And  that,  on  this  foundation,  it  has  been  (c)  2  Hale's  P.  C.  G13. 

constantly  ruled  of  late,  that  the  baying  (</)  R.  v.  Harris,  2  St.  Tr.  1039.     See 

of  a    book   or   paper  containing   libellous  Lord  Camden's  observations  in   Entick  v. 

matter,  at  a  bookseller's  shop,  is  sufficient  Carrington,  11  St.  Tr.  822. 

evidence  to  charge  the   master   with   the  (e)  Hale's  P.  C.  013. 


[1]  Sec  a  number  of  cases  in  the  American  Courts  on  the  subject  of  proof  by  com- 
parison of  handwriting,  in  Peake's  Ev.  by  Xorris,  p.  liJ7,  n. 

See  also  Southwick  v.  Stevens,  10  Johns.  It.  443,  and  .McCorklc  v.  Binns,  5  Binney, 
8  l|(,  as  to  witnesses  proving  a  newspaper  from  its  appearance,  &c.  to  be  the  paper  pub- 
lished by  the  defendant. 


30 


CIVIL  REMEDY— EVIDENCE. 


sellers  and   others,  where  the  book  or  libel  is  purchased  from  an 
agent  in  the  usual  course  of  trade(/). 


(/)  Eac.  Ab.  tit.  Libel,  458.  The  fol- 
lowing are  the  principal  cases  which  have 
been  decided  on  this  point.  In  Elizabeth 
Nutt'a  case,  Fitzg.  Al\  '2G.  2.  the  defend- 
ant was  tried  on  an  information  for  pub- 
lishing a  treasonable  libel.  It  appeared  in 
evidence  that  the  -defendant  kept  a  pam- 
phlet shop,  and  that  this  libel  was  sold  in 
the  shop  by  the  defendant's  servant,  for 
the  defendant's  use  and  account,  in  her  ab- 
sence, and  that  she  did  not  know  the  con- 
tents of  it,  nor  of  its  coming  in  or  going 
out  ;  and  per  Raymond,  L.  C.  J.  notwith- 
standing the  defendant  is  guilty  of  pub- 
lishing this  libel,  the  shop  being  kept  un- 
der  her  authority  and  direction  ;  it  would 
be  a  very  dangerous  thing  that  the  law  was 
otherwise,  and  it  has  been  so  ruled  in  a 
great  many  instances.  But  the  jury  being 
unable  to  agree  in  a  general  verdict,  and 
thinking  it  a  hard  case  upon  the  defendant, 
refused  to  find  a  general  verdict,  and  were 
desirous  of  finding  the  facts  specially  ;  and 
ultimately,  the  Attorney-General  agreed  to 
withdraw  a  juror,  which  was  done.  Ac- 
cording to  the  report  of  the  same  case  in 
Barnardiston  S06,  the  Lord  Chief  Justice 
observed,  that  if  a  servant  carries  a  libel 
for  his  master,  he  certainly  is  answerable 
for  what  he  does,  though  hecannot.so  much 
as  write  or  read.  It  is  impossible  not  to 
dissent  from  this  doctrine  so  expressed, 
without  the  qualification  added,  that  the 
servant  had  some  reason  to  know  that  he 
was  discharging  an  illegal  mission. 

In  the  case  of  the  King  v.  Dodd,  2  Sess. 
S3,  on  an  information  for  selling  and  pub- 
lishing a  libel  against  Chambers,  it  was  in- 
sisted upon,  for  the  defendant,  that  she  was 
sick,  and  that  the  libel  was  taken  into  her 
house  without  her  knowledge.  But,  by 
the  court,  this  is  no  excuse,  and  the  law 
presumes  her  to  be  acquainted  with  what 
her  servant  does.  Mr.  J.  Fortescue  said, 
that  it  had  been  ruled  that  the  finding  a 
libel  on  a  bookseller's  shelfy  was  a  publica- 
tion of  it  by  the  bookseller.  And  L.  C.  J. 
Raymond   said,   it  hath   been  ruled   that 


where  a  master,  being  out  of  town,  his 
trade  is  carried  on  by  his  servant,  the  mus- 
ter shall  be  chargeable  with  the  servant's 
publishing  a  libel  in  his  absence. 

In  the  case  of  the  King  v.  Jllmon,  5 
Burr.  2G89,  the  liability  of  booksellers 
was  much  discussed,  and  the  court  expres- 
sed an  opinion  that  the  sale  of  a  libel  in  a 
bookseller's  shop,  was  ■prima facie  evidence 
of  a  publication,  though  not  so  conclusive 
but  that  it  might  be  rebutted  by  circum- 
stances. It  does  not  indeed  appear  what 
would  have  been  deemed  by  the  court,  to 
be  sufficient  to  rebut  such  prima  facie  evi- 
dence, and  to  excuse  the  owner  ;  but  it 
seems  to  be  clear,  from  the  general  context 
of  the  decisions  on  this  subject,  that  a 
bookseller  is  considered  as  standing  in  a 
situation  of  peculiar  responsibility,  and 
that  he  is  liable  criminally  as  well  as  civ- 
illy, for  libels  sold  in  his  shop  in  the  usual 
course  of  business,  though  without  his  par- 
ticular knowledge. 

The  defendant  had  been  convicted  of 
publishing  a  libel,  (one  of  Junius's  letters) 
in  one  of  the  magazines,  called  the  London 
Museum,  which  was  bought  at  his  shop, 
and  purported  to  be  printed  for  him. 

The  defendant  was  found  guilty  on  proof 
that  the  libel  in  question  had  been  sold  in 
his  shop.  A  motion  was  afterwards  made 
for  a  new  trial',  on  an  affidavit,  the  princi- 
pal bearing  of  which  was,  that  the  libel  had 
been  sent  to  his  shop,  and  sold  there  by  a 
boy  without  his  knowledge,  privity,  or  ap- 
probation. But  the  court  were  of  opinion, 
that  none  of  the  matters  on  behalf  of  the 
defendant,  nor  all  of  them  added  together, 
were  reasons  for  granting  a  new  trial, 
whatever  weight  they  might  have  in  exten- 
uation of  his  offence,  and  in  consequence  les- 
sening his  punishment  ;  for  they  were  ex- 
tremely clear  and  unanimous  in  opinion, 
that  this  libel,  being  bought  in  the  shop  of 
a  common  known  bookseller  and  publisher, 
importing  by  its  title  page  to.be  printed  for 
him,  was  a  sufficient  prima  facie  evidence 
of  its  being  published  by  him  ;  not  indeed 


PUBLICATION. 


30 


The  sale  by  an  agent  in  a  shop  in  the  usual  course  of   [  *31  ] 

business  Is  prima  fade  evident f  a  publication  with  the 

knowledge  and  privity  of  the  "owner  ;  and  although  it  be    [  "■'<-   \ 
not  conclusive  evidence,  yet  it  throws  upon  him  the  ne- 

.  of 'rebutting  the  presumption  by  evidence  to  the  [  *33  ] 
contrary  Qr),  even  although  the  principal  livoa  at  a  dis- 
tance from  his  Bhop  (A).  But  the  defendanl  'may  rebut  [  "-'\  J 
the  presumption,  by  evidence  that  the  libel  was  Bold  con- 
trary to  his  orders,  or  clandestinely ;  or  thai  some  deceit  or  surprise 
was  practised  on  him  (i)  ;  or  that  he  was  absent  under  circumstan- 
ces which  entirely  negative  any  presumption  of  privity  or  conni- 
vance (/t)  [1]  [a  a]. 


conclusive,  because  he  might  have  contra- 
dicted it,  if  the  facts  would  have  borne  it 
by  contrary  evidence. 

In  the  above  case,  Lord  Mansfield  ob- 
servi'.i,  "  a libel  cannot  be  read  against  a 
defendant  before  it  has  been  proved  upon 
him.  This  must,  however,  be  understood 
of  such  prima  facie  proof  of  publication  as 
would  be  sufficient  to  be  left  to  a  jury  ;  for 
no  evidence  on  the  part  of  the  plaintiff  or 
in  support  of  a  prosecution,  can  in  strict- 
ness amount  to  proof,  since  the  evidence  of 
any  witnesses,  is  always  liable  to  be  rebut- 
ted by  opposite  testimony,  and  must  after 
all  depend  for  its  effect  upon  the  credit  giv- 
en by  the  jury  to  the  character  of  the  wit- 
nesses, and  the  circumstances  under  which 
such  evidence  is  given."  Aston,  J.  observ- 
ed, that  the  evidence  of  his  publishing  that 
which  was  bought  in  his  shop,  must  Btan  1 
till  the  contrary  appears.  There  may,  in- 
deed, (he  said)  be  circumstances  of  exten- 
uation, or  even  of  exculpation,  and  if  it 
were  a  surprise  upon  him,  the  court  would 
have  regard  to  such  oironmstancea  as  far 
as  they  merited  their  regard,  and  he  cited 
Harris's  case,  5  St.  Tr.  in:;?.  Hudson's 
case,  Mil.  3  G.  I.  and  R.  v.  JVuM.Fitzg,  17. 
Harris's  case,  it  is  observable,  is  little  ti- 
the point  ;  there  was  evidence  that  the  de- 
fendant gave  directions  for  printing  the 
libel  ;  that  it  was  afterwards  Bold  in  his 
shop,  and  that  lie  had  acknowledged  the 
publication. 

In  the  Kins  v-  Waller,  3  Esp.  C.  21, 
36* 


Lord  Kenyon  held,  that  the  proprietor  of 
a  newspaper  was  answerable  criminally  as 
well  as  civilly,  for  the  acts  of  his  servants 
or  agents  in  misconducting  a  newspaper  ; 
he  s  lid,  that  this  was  not  his  opinion  only, 
but  that  of  Lord  Hale,  Justice  Powell,  and 
Justice  Foster,  all  high  law  authorities, 
and  to  which  he  subscribed.  This  he  ad- 
ded, was  the  old  received  law  for  above  a 
century,  and  was  not  to  be  broken  in  upon 
by  any  new  doctrine  upon  libels.  The  same 
doctrine  is  said  to  have  been  held  in  the 
case  of  the  King  v.  Cuthel,  K.  B.  1799, 
and  by  Lord  Ellenborough,  C.J.  in  R.  v. 
White,  Guildh.  1811.  See  Holt's  Law  of 
Libel,  287.  The  sale  of  every  separate 
copy  of  a  libel  is  a  distinct  offence,  R.  v, 
Carlile,  1  Chitty,  453. 

(</)  Ibid,  and  R.  v.  Jllmon,  5  Burr. 
2689.  R.  v.  Dodd,  2724.  2  Esp.  C.  33. 
Dig.  L.  L.  27.  And  Wood's  Ins.  443,  2 
Sess.  C.  30.  12  Vin.  Ab.  229.  Plunkelt 
v.  Corbett,  5  Esp.  C.  ISO.  Haw.  P.  C.  c. 
73,  s.  10.    Barnard,  K.  B.  208. 

(o)  R.  v.  Dodd,  2  Bess.  C.  88.  Dig.  L. 
L.  27;  supra  note  (/)  for  the  law  pre- 
sumes that  the  master  is  acquainted  with 
what  his  servant  docs  in  the  course  of  his 
business.  And  see  R.  v.  .Vutt,  Barnard. 
K.  B.  808.     Fitsg    17.  Dig.  L.  L.-27. 

(i)  See  the  observations  of  Aston,  J.  in 
R.  v.  Almon,  o  Burr.  2080.  Supra, 
note  (/  ) 

(/i)  As  when  a  printer  is  confiued  in 
prison  to  which  Ids   servants  have  no  ac- 


34  CIVIL  REMEDY— EVIDENCE. 

Where  in  an  action  for  a  libel  it  appeared  that  the  libel  was  writ- 
ten in  the  hand  of  the  daughter  of  the  defendant  (a  minor),  who 
usually  wrote  his  letters  of  business,  but  no  evidence  was  given  of 
any  authority  to  write  the  letter  in  question,  or  of  any  recognition 
of  the  letter  by  him,  it  was  held  that  there  was  no  evidence  to  go  to 
the  jury  of  a  publication  by  the  defendant,  since  this  was  not  an  act 
within  the  scope  of  the  defendant's  authority  (/). 

If  one  procure  another  to  publish  a  libel,  the  procurer  is  guilty 
of  a  publication,  wherever  it  takes  place,  and  the  actual  publisher, 
like  any  other  particcps  criminis,  is  competent  to  prove  his  em- 
ployment by  the  defendant,  and  the  consequent    publication  (n). 

cess,  and  they  publish  a  libel  without  his  is  criminally  answerable.  But  it  is  said 
privity.  WoodfalVs  case.  Leach's  ed  of  that  this  is  a  different  principle  from  that 
Haw.  b  1,  c.  73  s.  10,  note  (3).  which  prevails  in  all  other  criminal  cases; 
[a  «]  In  the  case  of  Rex  v.  Gutch  and  but  this  does  not  appear  to  me  to  be  so; 
another,  1  Moody  and  Malkin,  433,  on  an  the  rule  seems  to  me  to  be  conformable  to 
information  against  proprietors  of  a  news-  principle  and  to  common  sense;  surely  a 
paper  for  publishing  a  libel,  Lord  Tenter-  person  who  derives  profit  from,  and  who 
den,  C.  J.  in  summing  up  said,  "  On  the  furnishes  means  for  carrying  on  the  con- 
part  of  Mr.  Gutch,  it  is  contended  that  the  cern,  and  entrusts  the  conduct  of  the  pub- 
proprietor  of  a  newspaper  who  is  not  lication  to  one  whom  he  selects,  and  in 
shown  to  take,  or  who  can  show  that  he  whom  he  confides,  may  be  said  to  cause  to 
took,  no  part  in  the  publication  of  the  be  published  what  actually  appears,  and 
newspaper,  and  of  the  libel  in  question,  is  ought  to  be  answerable,  although  you  can- 
not criminally  responsible.  Now,  whether  not  show  that  he  was  individually  concerned 
it  is  so  shown  in  this  case  is  a  fact  for  you  in  the  particular  publication.  It  would  be 
to  consider;  but  I  am  bound  to  state  the  exceedingly  dangerous  to  hold  otherwise; 
law  as  I  have  received  it  from  my  prede-  for  then  an  irresponsible  person  might  be 
cessors.  I  cannot  propose  to  you  a  differ-  put  forward,  and  the  person  really  pro- 
ent  rule  from  what  I  find  adopted  by  those  ducing  the  publication,  and  without  whom 
who  have  filled  my  situation  before  me.  it  could  not  be  published,  might  remain 
Now,  it  is  conceded  that  it  has  been  held  behind  and  escape  altogether, 
in  several  cases  that  a  proprietor  so  situated         (/)  Harding  v.  Greening,  1  Moore,  477. 

[1]  Iu  Massachusetts  it  hath  been  held  in  Smith  v.  Ashley,  11  Metcalf,  367,  that  the 
publisher  of  a  newspaper  containing  a  libellous  article,  is  not  liable  to  an  action,  if  at 
the  time  of  the  publication  he  has  no  knowledge  that  the  article  is  libellous.  With  all 
respect  it  is  conceived  that  this  decision  may  be  questioned,  as  it  is  not  warranted  by 
the  authorities  cited  in  the  case.  How  can  the  defendant's  want  of  knowledge  of  the 
libellous  character  of  the  article  be  shown?  In  the  very  nature  of  things  the  defence  is 
not  susceptible  of  proof  (Van  Ness  v.  Hamilton,  19  Johns.  R.  372.)  Besides  if  the 
article  was  so  artfully  concocted,  that  a  man  of  ordinary  intelligence,  might  be  misled 
by  it  so  as  to  deem  it  a  mere  fancy  sketch,  as  it  seems  was  pretended  in  this  case,  all 
that  can  be  asked  in  such  a  case  is  that  the  jury  may  be  instructed  to  take  the  circum- 
stances into  consideration  in  mitigation  of  damages;  but  surely  it  constitutes  no  defence. 
See  ante,  Vol.  I.  p.  212,  et  seq.  and  p.  221,  n.  (z). 


PUBLICATION. 


34 


•And  if  a  letter  be  sent  by  the  post  it  is  a  public*-     [  *35  ] 
tion  by  the  defendant  in  any  county  to  which  the  letter 
is  in  consequence  Bent  I  o  >. 

Where  the  defendanl  haa  admitted  that  he  is  the  author  of  a  par 
ticnlar book, errors  excepted,  it  is  incumbent  upon  him  to  prove  that 
the  errors  pted  are  material  I  p). 

In  the  case  of  libel,  aa  well  as  in  all  others,  whether  civil  or 
criminal,  presumptive  evidence  must  be  resorted  to  in  failure  of  di- 
rect and  positive  testimony  ;  and  the  Bame  reasonable  infer  I 
presumptions  are  to  be  made  by  the  juriea  as  in  all  other  instances. 

In  criminal  cases  it  is  always,  and  in  civil  casea  it  ia  in  some  in- 
stances, necessary  to  prove  a  publication  within  the  particular  couq- 
ty.  It  seems  that  whenever  the  publication  of  a  libel  has  once  been 
authorized  by  the  defendant,  he  ia  guilty  of  a  publication  in  whatever 
county  the  libel  shall  afterwards  be  in  consequence  published  (?). 


1/ 


(;?)  R.  v.  Johnson,  7  East,  Co.  R.  V. 
Dodd,  2  Sess.  C.  33.  13ac.  Ab.  tit.  Libel, 
497.     Wool's  Ins.   445. 

(o)  R.  v.  Watson,  1  Camp.  215,  infra, 
p.  86. 

(»)  R.  v.  Hall,  Str.  416. 
(<?)  B.  N.  P.  6.  R.  v.  Johnson,  7  East. 
65.  If  A.  send  a  libel  to  London  to  be 
printed  and  published,  it  is  his  act  in  Lon- 
don, if  the  publication  be  there.  R.  v.  Mid- 
dlelon.  Str.  77.  In  the  case  of  the  King 
v.  The  Honorable  Robert  Johnson,  7  Bast, 
G5,  the  defendant  was  indicted  in  the  coun- 
ty of  Middlesex  for  having  published  a  li- 
bel in  Cobbett's  Weekly  Register.  Mr. 
Cobbctt,  the  publisher  of  the  Register, 
proved  thai  he  had  received  an  anonymous 
letter  (the  original  of  which  he  believed  to 
be  destroyed,)  in  the  same  handwriting  as 
the  libels  which  he  afterwards  received  ; 
in  which  letter  (parol  evidence  of  which 
was  admitted  to  be  given  for  this  purpose,) 
the  writer  inquired  whether  it  would  be 
agreeable  to  Mr,  Cobbctt  to  receive  for  pub- 
lication, in  his  register,  certain  information 
of  public  affairs  in  Ireland,  and  if  it  were, 
he  was  desired  to  say  to  whom  such  infor- 
mation was  to  be  directed.  In  consequence 
of  the  receipt  of  this  letter,  which  was 
published  in  the  Register,  Mr.  Cobbett, 
through  the  medium  of  the  same  Register, 


requested  the  promised    information  to  be 
directed   to  Mr.  Budd,  No,  100  Pall    Mall, 
whose  shop  was  at  that  time  used  by  Mr. 
Cobbett  for  the  publication  of  his  Register, 
where  letters  of  communication   were   ad- 
dressed to  him,  and  from  whence  he  receiv- 
ed them,   his  own   house   being   in   Duke 
street,  Westminster.      After   this    intima- 
tion, Mr.  Cobbett   received,   in   due   time, 
two   several    letters,   containing   different 
parts  of  the  libels  in  question,  both  in  the 
same  handwriting  with  the  letter  previous- 
ly-received.     Both  the  letters  came  under 
cover,  but  the  covers  were   believed  either 
to  be  destroyed  or  lost,  having  been  thrown 
as'ule  as  useless  ;  and  therefore   parol  evi- 
dence was  admitted,  to  prove  that  they  had 
the  Irish   post-mark  upon  them,  and  were 
directed  in  the  manner   pointed   out  in  the 
I:  gister.      The  first  of  the   letters,  dated 
29th  October,  1808,  was  received,  and  the 
t  opened  by  Mr.  Bud  1,  who  thereupon 
sent  it,  together    with  the  cover  opened,  to 
Mr.  Cobbett  in  Duke  street,  bj  a  person  in 
the  office  whom    the    witness  did  not  recol- 
lect.     But  in   consequence  of  his   desiring 
Mr.  Uudd  not  to  open  any  other  letters  so 
directed,   Mr.    Cobbett  received    the   next 
letter,  which  came  to  Mr.  Budd,  by  a  sub- 
sequent post,  unopened.      Several  witnes- 
ses were  then  called,  who,  upon   examina- 


35 


CIVIL  REMEDY— EVIDENCE. 


[  *36  ]         Where  the  writer  of  a  libel  sent  it  "by  the  post,  directed 
to  A.  B.  in  the  count)7  B.  and  it  was  in  consequence  sent 
[  *37  "     into  the  county  *B.  and  from  thence  sent  by  the  post  to 
A.  B.  in  the  county  M.  where  A.  B.  received  it  and  read 
[  *38  ]    *it,  it  was  held  to  be  a  publication  in  the  county  M.  (r). 
If  the  libel  be  '  dated  of  a  particular  place,  the  date  is  evidence 
that  it  was  written  there  (.?).     It  has  been  said,  that  the  post-mark 
upon  a  letter  is  not  prima  facie  evidence  to  prove  that  a  letter  has 
been  put  into  the    post-office  at  the  place  denoted  by  the  post 
mark  (t)  ;  it  seems,  however,  from  a  later  authority,  that  the  post- 
mark is  a  fact  *admissible  iu  evidence,  when  corroborated 
[  *39  ]     by  other  circumstances  (u) 


tion  of  the  letters  so  received  by  Mr.  Cob- 
bett,  swore  to  their  belief  of  their  being 
the  handwriting  of  the  defendant,  who  at 
the  period  in  question,  was  an  Irish  judge. 
It  was  then  proposed,  by  the  attorney -gene- 
ral, that  the  letters  containing  the  libels 
should  be  read,  which  he  said  contained 
internal  evidence  that  they  were  written 
and  sent  by  the  writer  to  Mr.  Cobbett,  for 
the  purpose  of  being  published  in  his 
Register. 

But  the  reading  was  objected  to,  upon 
the  ground  that  there  was  no  evidence  to 
go  to  the  jury,  of  a  publication  by  the  de- 
fendant in  Middlesex.  That,  admitting 
the  libels  to  be  in  the  handwriting  of  the 
defendant,  there  was  no  evidence  to  show 
that  he  had  sent  them  into  Middlesex  to  be 
there  published,  nor  any  privity  established 
between  himself  and  Cobbett.  The  case 
of  the  Seven  Bishops  was  quoted  as  in 
point  ;  and  it  was  contended,  that  if  any 
publication,  proved  to  have  taken  place  in 
Middlesex,  was  sufficient  ground  for  the 
reading  of  the  libel  there,  it  ought  to  have 
been  read  in  that  case,  since  the  petition, 
which  had  been  acknowledged  to  have  been 
signed  by  them,  was  found  in  the  king's 
hands  in  Middlesex  ;  and  that  the  only 
link  there  wanting  was,  that  "it  came  there 
by  the  agency  of  the  Bishops,  which  was 
holden  not  to  be  supplied  by  the  evidence 
of  their  acknowledgment  of  their  hand- 
writing in  that  county.      The  trial  was  at 


bar,  before  Lord  Ellenborough,  C.  J.  and 
Grose,  Lawrence,  and  Le  Blanc,  Justices. 

But  it  was  answered  by  the  court,  that 
the  case  of  the  Seven  Bishops  was  irrele- 
vant ;  that  it  had  been  soundly  ruled  in 
their  case,  that  the  confession  of  their  sig- 
natures, extorted  from  them  as  it  was,  did 
not  amount  to  evidence  of  a  publication  in 
Middlesex  ;  that,  in  the  present  case,  a 
publication  in  Middlesex  had  been  proved 
by  Mr.  Cobbett,  and  that  the  notification 
by  letter  to  him,  that  he  should  receive 
certain  papers  for  the  purpose  of  publica- 
tion, the  public  answer  in  the  Register  ap- 
pointing the  mode  of  sending,  and  the  con- 
sequent receipt  of  papers  by  Cobbett, 
through  that  channel,  answering  the  de- 
scription of  those  proposed  to  be  sent,  and 
proved  to  have  been  written  by  the  defend- 
ant, afforded  evidence  to  go  to  a  jury  de- 
cide, whether  the  publication  in  Middlesex 
had  not  been  made  through  the  defendant's 
procurement.  The  jury  found  the  defend- 
ant guilty. 

(r)  R.  v.  Watson,  1  Camp.  215  ;  and 
see  R.  v.  Girdwood,  East's  P.  C.  1116 
1120. 

(s)  R.  v.  Burdett,  4  B.  &  A.  95. 

(t)  R.  v.  Waston,  1  Camp.  215.  But 
the  defendant  was  found  guilty  of  another 
publication. 

(«)  R.  v.  Johnson,  7  East,  65;  note, 
that  in  this  case  the  post-mark  seems  to 
have  been  perfectly  immaterial;  but,  upon 


PUBLICATION.  39 

A  general  confession  that  the  defendant  was  the  writer  of  a 
libel,  does  not  amount  to  an  admission  that  he  published  it.^till 
less  is  it  a  oonfession  that  ho  published  it  in  any  particular  coun- 
ty  (,,. 

A  late  case  upon  this  subject  oxcited  much  interest,  ami  occasi  i 
much  legal  investigation  ami  discussion.  The  points  were  shortly 
as  follow.  The  information  charged  tin'  defendant  with  composing, 
writing,  and  publishing  a  libel  in  Leicestershire;  A.  stated  that  he 
received  the  libel,  which  was  in  the  hand-writing  of  the 
defendant,  from  '15.  on  the  24th  of  August  (y),  it  was  [  '10  ] 
contained  in  an  envelop,  which'  had  been  destroyed,  hut 
which,  to  tip'  best  of  the  witness's  recollection  was  addressed  to  B. 
who  was  the  professional  friend  of  the  defendant;  there  was  no 
trace  of  any  seal,  either  on  the  envelop  or  paper.  The  paper  was 
dated  Kirby  Park,  August  the  22d.  Kirby  Park  (the  defendant's 
seat)  being  situate  in  Leicestershire,  100  miles  from  London,  not 
far  from  the  boundary  between  the  counties  of  Leicester  and  Rut- 
land. The  defendant  was  seen  in  the  county  of  Leicester,  near  Kirby 
Park,  on  the  22d  and  23d  of  August,  and  there  was  no  evidence  of 
his  having  left  the  county  of  Leicester  till  after  the  publication  (c) 
of  the  paper,  which  took  place  on  the  25th ;  the  only  words,  either 
on  the  paper  or  envelop,  beside  the  libel,  were  "  forward  this  to 
A.."  (the  witness).  The  paper  was  addressed  to  the  electors  of 
Westminster  ;  and  A.  had  no  reason  for  supposing  that  the  defendant 
intended  that  it  should  be  published,  except  that  it  was  so  addressed. 
A.  having  been  required  to  give  up  the  author,  the  de- 
fendant wrote  a  letter  admitting  that  he  was  the  'author.  *41 
No  evidence  was  given  on  the  part  of  the  defendant.  It 
was  object.'. 1  at  the  trial,  and  afterwards  in  the  Court  of  King's 
Bench,  after  the  conviction  of  the  defendant,  on  a  motion  for  a  new- 
trial,  that  there  was  no  evidence  of  &  publication  in  Leicestershire. 

principle,  there  seems   to  be  little  doubt  was  not  evidence  of  a   publication  of  that 

that  a  post-mark  upon  a  letter,  in  the  hand  which  was  termed  (but  grossly  misna 

writiDg  of  a  defendant,  ond  received  through  a  libel  in  the  county  of  Middlesex     And 

the  medium  of  the  jH,st,  is  evidence,  as  a  Bee  the  observations  up  a  this  case  by  Ld. 

circumstance  arising  in   the  usual   course  Kllenborough,    C.   J.   and    Lawrence,  .J.  in 

and  routine  of  business.    See  Fletcher  v.  R.  v.  Juhnson,  7  East,  G  »;  and  R.  v.  Hur- 

Braddyll,  ■'>  Starkie'a  C.  CI.  ,',//.  1  B.  .v  A. 

(x)  The  Seven  Bishops'  case,  4   St.  Tr.         (y)  A.  did  not   state  where   he  received 

804;   1  .lac  II.,  where  the  defendants,  in  it,  but  it  was  assumed,  and   no  doubt  it 

Middlesex,  admitted    their    si-natures  to  a     W8S  the  fact,  that  he  received  it  in  Middle- 
petition   which    hut    been    prepared    and     sex. 
signed  in  Surry;  but   it  was  held  that  this         (;)    i.  c.  in  the  public  newspapers. 


41 


CIVIL  REMEDY— EVIDENCE. 


The  learned  judge  left  it  to  the  jury  to  say,  whether  there  had  been 
a  publication  in  Leicestershire,  by  an  open  delivery  of  the  libel. 
The  question  and  the  principles  relating  to  it,  were  discussed,  on  the 
motion  for  a  new  trial,  with  all  the  aid  which  talent,  learning,  expe- 
rience, and  unwearied  diligence  could  supply.  The  ultimate,  al- 
though it  seems  not  the  unanimous,  decision  of  the  court  was,  that 

the  evidence  was  sufficient  to  warrant  the  conviction  (a). 
[   *42    '         *5ome  proofs  are  to  be  noticed  which  apply  particularly 

to  the  proprietors  and  publishers  of  newspapers.  Upon 
*43    "I    an  indictment  for  a  libel,  *published  in  a  newspaper  called 

the  World,  proof  that  the' paper  was  sold  at  the  defend- 
ant's office,  and  that  he  as  proprietor,  had  given  a  bond  to  the  stamp 
office,  as  required  by  the  stat.  29  Geo.  III.  c.  10,  s.  10,  for  securing 


(a)  R.  v.  Sir  Francis  Burdett,  Bart.  4 
B.  &  A.  717.  The  judges  delivered  their 
opinions  seriatim.  Best,  J.  was  of  opinion 
that  there  was  presumptive  evidence  of  an 
actual  publication  in  Leicestershire,  and 
that  the  sending  the  libel  by  the  post,  from 
that  county,  amounted  to  a  publication.  R. 
v.  Watson,  1  Camp.  215.  R.  v,  Wil- 
liams^ Camp.  505.  Codes  Lib.  9,  tit.  86; 
and  see  GirdwooiPs  case,  East's  P.  C.  1116. 
1120. 

Holroyd,  J.  was  of  opinion,  that  the 
composing  and  writing  a  libel  in  the  county 
of  L.  and  afterwards  publishing  it,  al- 
though the  publication  was  not  within  the 
county  of  L  ,  was  an  offence  sufficiently 
charged  as  a  substantive  offence  in  the  in- 
formation, and  which  gave  jurisdiction  to  a 
jury  of  the  county  of  L.  (see  R.  v.  Beere, 
2  Salk.  417.  Carth.  409.  Holt's  R.  421, 
R.  v.  Kntll,  Barnard,  K.  B.  305.  R.  \. 
Carter,  9  St.  Tr.)  and  that  the  composing 
and  writing,  with  the  intent  afterwards  to 
publish,  also  amounted  to  a  misdemeanor; 
and  that  a  jury  of  the  county  of  L.  might 
inquire  as  to  tho  publishing  in  another 
county,  in  order  to  prove  the  defendant's 
intention  in  composing  and  writing  in  the 
county  of  L.  And  that,  in  the  case  of  an 
aggregate  charge,  part  of  which,  being  in 
itself  a  substantive  misdemeanor,  is  com- 
mitted within  a  particular  county,  the  jury 
may  inquire  into  the  remainder,  although 
done  elsewhere;  that  there  was  reasonable 


evidence  of  a  publication  in  L. ;  and  that  a 
delivery  of  a  libel  within  the  county,  al- 
though it  be  sealed,  is  a  publication  in  law. 

Bay  ley,  J.  was  of  opinion  that  there  was 
not  sufficient  evidence  to  support  a  pre- 
sumption that  there  had  been  an  open  de- 
livery of  the  libel  in  L.,  considering  that 
positive  proof  might  have  been  given  by 
calling  B.  as  a  witness.  He  gave  no  opin- 
ion on  the  question,  whether  a  close  de- 
livery amounted  to  a  publication.  He  held, 
that  the  whole  corpus  delicti  must  be 
proved  within  one  county;  and  that  there 
was  no  distinction  in  this  respect  between 
felonies  and  misdemeanors.  He  gave  no 
opinion  on  the  question,  whether  the  com- 
posing a  writing,  with  intent  to  publish, 
constituted  an  offence. 

Abbott,  L.  C.  J.  intimated  his  opinion, 
that  mere  delivery  constituted  a  publica- 
tion. He  held  that  the  facts  warranted  the 
conclusion  that  the  paper  had  been  de- 
livered by  the  defendant  in  L.,  to  B.,  in 
the  state  in  which  it  had  been  delivered  by 
the  latter  to  A.  That,  even  supposing  the 
libel  to  have  been  delivered  by  the  defend- 
ant in  a  different  county,  yet  as  the  whole 
was  a  misdemeanor,  compounded  of  dis- 
tinct parts,  each  of  which  was  an  act  done 
in  the  prosecution  of  the  same  criminal  in- 
tention, the  whole  might  be  tried  in  the 
county  of  L.  where  one  of  those  acts  had 
been  done. 


PUBLICATION' 


43 


the  duties  on  advertisements,  and  that  he  had  from  time  to  time 
applied  to  the  stamp-office  respecting  the  duties,  was  held  to  be 
strong  evidence  to  prove  a  publication  by  him  (6). 

Hart  and  Wliite  the  printer  and  proprietor  of  a  newspaper  called 
•■  The  Independent  Whig  (c),"  were  indicted  in  London,  for  a  libel 
published  in  that  paper. 

The  prosecutor  gave  in  evidence  the  affidavits  .swum  by  the  de- 
fendants, according  to  the  stat.  38  Geo.  III.  chap.  78  (d),  with 


(6)  R.  v.  Topham,  4  T.  It.  126. 

(c)  10  East,  94. 

(d)  By  sect.  1,  no  person  shall  print  or 
publish  any  newspaper  until  certain  affi- 
davits, or  affirmations,  &e.  Bhall  have  been 
delivered  to  the  commissioners  of  stamps  &c. 

By  sect.  2,  these  most  contain  a  true  de- 
scription of  the  printers,  publishers,  and 
proprietors,  or  of  two  of  them,  and  of 
their  places  of  abode,  of  the  proprietor's 
share  in  the  paper,  and  the  house  in  which 
it  is  intended  to  be  printed,  and  of  it*  title. 

By  sect.  9,  all  such  affidavits  and  affirm- 
ations, or  copies  thereof,  certified  to  be  true 
copies  according  to  the  act,  shall,  in  all 
proceedings,  civil  and  criminal,  touching 
any  newspaper,  or  other  such  paper  as 
aforesaid,  which  shall  be  mentioned  in  any 
such  affidavits  or  affirmations,  or  touching 
any  publication,  matter,  or  thing  contained 
in  any  such  newspaper  or  other  paper,  be 
received  and  admitted  a<  conclusive  evi- 
dence of  the  truth  of  all  stub  m  wters  set 
fortli  in  Buch  affidavits  or  affirmations,  as 
arc  hereby  required  to  be  therein  Bet  forth, 
against  every  person  who  shall  have 
■worn,  or  affirmed  such  affidavits  or  affirm- 
ations; an  1  Bhall  also  be  receb  e  1  and  ad- 
mitted, in  like  manner,  as  sufficient  evi- 
dence of  the  truth  of  all  Bucb  matters, 
against  all  and  every  person  who  Bhall  not 
have  signed  or  sworn,  or  affirmed  thi 
but  who  shall  be  therein  mentioned  to  be  a 
proprietor,  printer,  or  publisher  of  such 
newspaper,  or  other  paper,  unless  the  con- 
trary Bhall  be  satisfactorily  proved.  The 
section  then  contains  an  exception  in  hvor 
of  such  as  have,  before  the  publication  of 
the  paper  in  question,  delivered  in  to  the 
commissioner  an  affidavit,  &c,  stating  that 


they  have  ceased  to  be  the  printers,  ic.  of 
such  paper. 

By  the  10th  section,  in  some  part  of 
every  newspaper,  kc.  shall  be  printed  the 
names,  additions,  and  pi  ices  "l  abe  de  of 
the  printers  and  publishers,  and  of  the 
place  where  the  Bame  is  printed. 

Bj  Beet  11  it  shall  not  be  necessary,  after 
any  such  affidavit,  &C.  or  a  certified  copy 
thereof,  Bhall  have  been  produced  in  evi- 
dence as  aforesaid,  against  the  persons  v.  hu 
signed  and  made  such  alii  davit,  or  are 
therein  named,  according  to  this  act,  or 
any  of  them,  and  after  a  newspiper,  or 
other  such  paper  as  aforesaid,  shall  be  pro- 
duced in  evidence,  intituled  in  th 
manner  as  the  newspaper,  or  other  paper 
mentioned  in  such  affidavit  or  copy  is  inti- 
tuled, and  wherein  the  name  or  US 
the  printer  and  publisher,  or  printers  and 
publishers,  and  the  place  of  printing,  men- 
tioned in  such  affidavit,  or  affirmation,  for 
the  plaintiff,  informant,  or  prosecutor,  or 
-eking  to  recover  any  of  the  pen- 
alties given  by  this  act,  to  prove  that  the 
newspaper  or  paper  to  which  such  trial  re- 
lates, v>  is  purchased  at  any  house,  shop, 
or  office  belonging  to  or  occupied  by  the 
defendant  or  defendants,  or  any  of  them, 
or  by  his  or  their  servants  or  workmen,  or 
where  he  or  they,  by  themselves,  or  their 
Bervants  or  workmen,  usually  carry  on  the 

r    publishing 
paper,  or  where  the  b  ime  is  nsuallj 

By  Beet    18,  it  is  enacted,  th  it  a  certified 

copy  of  such  affidavit  or  affirmation  shall 
be  delivered  by  the  commissioners  to  the 
person  requiring  it,  upon  payment  of  one 

shilh: 

By  sect.  14,  in  order  to   prevent  the  in- 


43 


CIVIL  REMEDY—EVIDENCE. 


*44  their  hands-writing  *thereto  and  delivered  to  the  commis- 
sioners, containing  all  the  particulars  required  by  the 
[    *45         act  *and,  among  the  rest,  the  description  of  the  place 

*46  where  the  newspaper  was  printed,  which  *was  in  London. 
An  officer  from  the  Stamp-Office,  (which  is  not  in  Lon- 
don) produced  a  newspaper,  without  stating  from  whence  it  came, 
containing  the  libel  in  question,  which  newspaper  answered  the  whole 
description  contained  in  the  affidavit,  and  stated,  at  the  foot  of  it, 
that  it  was  printed  at  No.  33,  Warwick-lane,  London ; 

*47  and  *it  was  also  proved  that  the  defendant's  printing- 
house  was  at  the  same  place. 

The  defendants  were  fouud  guilty,  but  a  new  trial  was  afterwards 
moved  for,  on  the  ground  that  the  evidence  at  the  trial  was  insuffi- 
cient to  prove  a  publication  in  London ;  that  the  9th  clause  of  the 
act  cited  made  the  affidavit  evidence  of  nothing  more  than  the  mat- 
ters contained  therein,  which,  by  reference  to  the  second  clause,  are 
the  names,  additions,  descriptions,  and  places  of  abode  of  the  print- 
ers, publishers,  and  proprietors,  the  description  of  the  printing-house 
and  title  of  the  paper ;  that  it  was  still  necessary  to  prove  a  publi- 
cation in  the  county  where  the  trial  was  had,  since  the  paper,  though 


convenience  'which  might  result  from  re- 
quiring the  personal  attendance  of  the 
commissioners,  it  is  enacted,  that  a  certifi- 
cated copy  of  any  affidavit  or  affirmation, 
proved  to  be  signed  by  the  person  who  has 
the  custody  of  the  original,  shall  without 
proof  that  he  is  a  commissioner  or  officer, 
be  received  in  evidence  as  sufficient  proof 
of  such  affidavit  or  affirmation,  and  that 
the  same  was  duly  sworn  or  affirmed,  and 
of  the  contents  thereof;  and  that  such 
copies,  so  produced,  and  certified,  shall 
also  be  received  as  evidence  that  the  affi- 
davit or  affirmation  of  which  they  purport 
to  be  copies  have  been  sworn  or  affirmed 
according  to  this  act;  and  shall  have  the 
same  effect  in  evidence  as  the  originals 
would  have  had  in  case  they  had  been  pro- 
duced and  proved  to  have  been  duly  so 
certified,  sworn,  and  affirmed,  by  the  per- 
son appearing  by  such  copy  to  have  sworn 
or  affirmed  the  same  as  aforesaid. 

By  the  17th  section,  it  is  enacted,  that 
every  printer  or  publisher  of  any  news- 
paper, or  other  such  paper,  shall  within 
six  days,  deliver  to  the  commissioners,  or 


their  officer,  one  of  the  papers  so  published, 
signed  by  the  printer  or  publisher  in  his 
handwriting,  with  his  name  and  place  of 
abode;  and  that  the  same  shall  be  kept  by 
the  commissioners  or  their  officer,  under  a 
penalty,  in  case  of  neglect  by  such  printer 
or  publisher,  of  £100;  and  that  upon  ap- 
plication by  any  person  to  the  commission- 
ers or  their  officer,  to  have  such  paper  pro- 
duced in  evidence  in  any  proceeding,  whe- 
ther civil  or  criminal,  such  commissioners 
or  officer  shall,  at  the  expense  of  the  appli- 
cant, at  any  time  within  two  years  from 
the  publication,  either  cause  the  same  to  be 
produced  in  the  court,  and  at  the  time 
when  the  same  is  required  to  be  produced, 
or  shall  deliver  the  same  to  the  applicant, 
on  his  giving  reasonable  security  at  his  own 
expense,  for  returning  the  same;  and  that 
in  case  such  commissioner  or  their  officer 
cannot,  by  reason  of  a  previous  application 
comply  with  the  terms  of  a  subsequent  one, 
they  shall  comply  with  such  subsequent 
one  as  soon  afterwards  as  they  shall  be 
able  so  to  do. 


PtJBLIOATlOK.  47 

printed  in  one  place  may  be  published  in  another;  that  the  11th 
section  is  confined  to  actions  or  informations  for  penalties  given  by 
the  act;  that  the  object  of  the  17th  clause  was  to  fix  the  printing 
and  publication  upon  the  parties  described  in  the  stamp-office  docu- 
ments, by  comparing  the  newspaper  so  delivered  with  any  other  of 
the  same  impression  published  in  the  county  where  the  trial  is  had  ; 
but  that  a  publication  to  the  commissioners,  under  th<j  direction  of 
the  act,  could  not  1"-  considered  as  a  libellous  and  guilty  publication, 
without  any  other  evidence  of  publication  in  the  same  place;  that, 
besides,  the  newspaper  was  only  produced  by  an  officer 
•from  the  stamp-office,  without  any  proof  how  it  came  [  *48 
there,  or  from  whom  it  was  received. 

The  court  were  satisfied  that  the  evidence  of  a  publication  in  Lon- 
don was  sufficient  («),  on  the  ground  that  '"the  act  requiring  an 
affidavit  to  be  made  by  the  printers,  proprietors,  and  publishers, 
specifying  their  names  and  places  of  abode,*'  &c.  makes  the  affidavit 
conclusive  as  to  the  several  facts  contained  in  it,  as  against  the  per- 
sons signing  it,  unless  they  ceased  to  be  printers  before  the  publica- 
tion complained  of.  That  had  the  act  stopped  here,  the  affidavits 
would  be  conclusive  that  one  of  the  defendants  was  the  printer  and 
publisher,  and  the  other  the  proprietor  of  the  paper  so  intituled; 
and  that  it  was  printed  at  the  place  therein  described,  which  is  within 
the  city  of  London,  that  would  have  put  them  upon  shewing  that 
the  paper  produced  was  a  fabrication.  But  the  11th  section  goes 
further,  and  enacts,  that  proof  of  the  affidavit  shall  render  it  un- 
necessary to  prove  that  a  new-paper,  corresponding  in  title,  Are.  with 
the  one  described  in  the  affidavit,  and  to  which  the  trial  relate-,  was 
purchased  at  any  house,  <fcc.  belonging  to  or  occupied  by  the  defend- 
ant-, their  servants,  &C.  or  where  they  usually  carry  on 
the  business  of  printing  or  publishing  'such  paper,  or  |  *40 
where  the  same  is  usually  sold. 

That,  at  all  events,  the  llih  section  superseded  the  necessity  >>[" 
further  proof,  Bince  the  words  of  it,  plaintiff,  informer,  prosecutor, 
&j.  were  general,  and  not  confined  to  informants  seeking  to  recover 
penalties. 

Where  the  defendant,  having  exhibited  a  libellous  paper,  retains 
it  in  his  possession,  if,  after  notice  to  produce  it,  he  refuse,  parol 
evidence  may  be  given  of  its  content-;,  and   that  even    in   cases  of 

(e)  Lord  Ellcuborough,  C.  J.  gave  no  opinion. 

Vol.  II.  37 


49  CIVIL  REMEDY— EVIDENCE. 

treason  (/)  /  and  a  printer  may  prove  that  he  received  a  libel  in 
manuscript  from  the  defendant,  and  returned  it  to  him  (g-). 

To  prove  (A)  the  publication  of  a  newspaper,  an  unstamped  copy 
may  be  given  in  evidence,  and  the  witness  may  swear,  that  similar 
papers  were  published. 

A  delivery  of  a  newspaper,  according  to  the  provisions  of  the 
stat.  38  G.  III.  c.  7.8,  to  the  officer  of  a  stamp-office,  is  a  sufficient 
publication,  though  it,  is  directed  by  the  statute,  for  the  officer  has 
an  opportunity  of  reading  it  (i). 

*50  ]  Where  the  libel  has  been  published  in  a  foreign  lan- 

guage, it  must  be  shown,  by  means  of  a  sworn  interpreter, 
that  the  translation  set  out  in  the  declaration  is  a  correct  one  (&). 
"Where  an  indictment  charges  the  defendant  with  composing,  print- 
ing, and  publishing  a  libel,  he  may  be  found  guilty  of  the  printing 
and  publishing,  or  of  the  publishing  only  (/). 

Where  a  governor  of  a  British  colony  has  made  communications 
to  the  attorney-general  of  the  colony  as  such,  the  latter  is  not  bound 
to  reveal  them  in  an  action  against  the  former  (n).  So  it  has  been 
held  to  be  optional,  on  the  part  of  a  barrister,  whether  he  will  dis- 
close what  passed  in  court  upon  his  making  a  motion  for  a  criminal 
information  (o).  According  to  the  general  rule  of  law,  that  a  wit- 
ness is  not  bound  to  criminate  himself,  no  witness  is  bound  to  answer 
a  question,  where  the  answer  may  tend  to  shew  that  he  has  been 
guilty  of  publishing  a  libel,  for  which  he  may  be  indicted  (/?). 

Next,  as  to  proof  of  the  colloquium  or  inuuendos. — Having  proved 
the  act  of  speaking  the  words,  or  publishing  the  libel, 

*51  ]  the  next  step  is  to  *prove  their  application  to  the  plaintiff, 
and  to  the  extrinsic  matters  whose  existence  is  alleged 
in  the  introductory  part  of  the  declaration  or  indictment,  where  the 
illegality  of  the  words  or  libel  depends  upon  their  application  to  such 
extrinsic  facts.  This  is  usually  done  by  the  testimony  of  one  or 
more  witnesses  who  know  the  parties  and  circumstances,  and  who 
can  state  their  judgment  and  opinion  on  the  application  and  meaning 
of  the  terms  used  by  the  defendant,  as  alleged  in  the  declaration  or 
indictment.     As  such  evidence  is  simply  as  to  a  result  or  conclusion 

(/)  See  Le  Merchant's   case,   2   T.  R.         (n)    Wyattv.  Gore,  Holt's  C.  299. 
201.     Layer's  case,  6  St.  T.  229.  (0)  Per  Eyre,  C  J.  1  Esp.  C.  456. 

(g)  R,  v.  Pearce,  Peake's  Cas.  75.  (p)  Moloney   v.   Bariley,    3  Camp.   C. 

(/i)  Ibid  210;  supra,  vol.  I.  p.  251;  and  see  Starkie 

(t)  R.  v.  Amphlitt,  4  B.  &  C.  35.  on  Evidence,  pt.  iv.  1740. 

{k)  Supra,  vol.  I.  p.  368. 

(0  R.  v.  Williams,  2  Camp.  506.     R. 
v.  Hunt,  ib.  583.    2  East's  P.  C.  515,  6. 


MALICE.  51 

which  the  witness  may  have  derived  from  a  great  variety  of  circum- 
stances, ii  is  sufficient  if,  in  the  first  instance,  he  Btate  his  belief  and 
opinion  as  to  the  defendant's  meaning  generally,  if  he  think  proper, 
to  inquire  as  to  the  means  and  grounds  which  the  witness  hud  for 
forming  that  conclusion. 

The  meaning  of  tin-  defendant,  as  averred  by  an  innuendo,  is*  a 
question  of  fact,  to  be  decided  by  tin' jury  (//). 

Where  the  words  arc  spoken  in  a  foreign  language,  or  where  the 
terms  are  ambiguous,  and  it  is  doubtful  in  what  sense  the 
speaker  intended  *thcm,  the  question  is,  in  what  sense  [  '."»_  ] 
the  hearers  understood  them  ;  and  if,  where  words  may 
have  two  meanings,  the  hearers  understood  them  in  an  actionable 
sense,  the  action  is  maintainable  :  for  the  slander  and  damage  con- 
sists in  the  apprehension  of  the  hearers  (r).  Where  slander  is  pub- 
lished in  a  foreign  language,  it  is  necessary  to  shew  that  the  hearers 
understood  the  language,  for  it  will  not  be  presumed  that  being 
ignorant  of  the  words,  they  afterwards  repeated  them  to  those  who 
understood  them  (a1).  But  it  seems  that  where  the  words  arc  ac- 
tionable in  respect  of  extrinsic  facts,  as  for  instance,  that  they  were 
spoken  of  the  plaintiff  in  his  character  of  an  attorney,  it  is  not  es- 
sential to  shew  that  the  hearers  knew  the  fact  at  the  time  of  the 
speaking,  for  they  may  know  it  afterwards,  and  communicate  the 
words  to  those  who  know  it  (/). 

Next  as  to  the  evidence  of  malice  and  intention. — It  has  been 
already  observed,  that  where  words  have  been  uttered,  or  a  libel 
has  been  published  of  the  plaintiff,  by  which  actual  or  presumptive 
damage  has  been  occasioned,  the  malice  of  the  defend- 
ant *is  a  mere  inference  of  law  from  the  very  act,  for  [  *53  ] 
the  defendant  must  be  presumed  to  have  intended  that 
which  is  the  natural  consequence  of  his  act  (u).  In  such  instances, 
therefore,  it  is  unnecessary  to  give  evidence  of  malice  in  fact  or  actual 
malice,  unless  it  may  be  by  the  way  of  aggravating  the  damages. 
In  other  cases,  the  occasion  and  circumstances  of  the  speaking  and 
publishing  repel  the  action,  cither  peremptorily  and  absolutely,  or 

(q)  Per   Lord   Ellenborough,    0.    J    in  are  wrong,  the  doers  are  answerable  for  all 

Roberts   v.    Cambden,  9  East,  96,  Sir  W.  evil  intents  and  damages.     lb. 

Blackstone.     2  W.  Bl.  902,  and   Gould,  J.  (t)  P.  C.  Hob.  268;  and  see  1  Vin.  Ab. 

in  Oldham  v.  Peake,  2  W.  Bl.  959,  Cowp.  507,  and  Gilb.  Cas.  L  &  E.  1 17. 

278,  and  see  Penfold  v.  U'cstcotc,  2  N.  K.  (0  P-  G  Fleetwood  v.  Curley,  Hob.  267. 

335.  (u)   Prosser  v.  Bromagc,  4  B.  ft  C.  -47- 

(r)    Fleetwood  v.  Curley,  Hob.  2G7;  for  supra,  vol.  I.  220;  R.  v.  Harvey,  2    B.  & 

where  slanderous  words  are  spoken,  which  C.  258,  supra,  vol.  I.  p.  215. 


53  CIVIL  REMEDY— EVIDENCE. 

unless  express  malice  exist ;  and  in  this  latter  class  of  cases,  where 
actual  malice  is  essential  to  the  action,  it  lies  on  the  plaintiff  to 
prove  the  fact.  Where  the  burthen  of  proving  express  malice  is 
thus  thrown  upon  the  plaintiff,  he  may  give  in  evidence  any  expres- 
sions of  the  defendant,  whether  they  be  oral  or  written,  which  indi- 
cate spite  and  ill  will,  for  the  purpose  of  shewing  the  temper  and 
disposition  with  which  he  made  the  publication  complained  of. 

It  has,  however,  been  held,  that  other  words  or  libels  are  not 
admissible  evideuce  to  show  the  quo  animo,  unless  they  relate  to  the 
same  subject.     An  action  was  brought  for  a  libel  published  in  a 
periodical  work,  called  the  Satirist,  or  Monthly  Meteor,  which  sta- 
ted (inter  alia~)  that  the   plaintiff,  being  prosecuted  by 
*54  ]      the    attorney-general,    *had   fled   the    country,  that  he 
might  save  himself  from  the  pillory.     To  prove  the  ma- 
licious motive  of  the  defendant,  the  plaintiff's  counsel  proposed  to 
read  extracts  from  a  subsequent  number  of  the  Satirist,  but  Sir  J. 
Mansfield,  C.  J.  rejected  them  all,  except  one,  which  had  immedi- 
ate reference  to  the  former  libel  (x) . 

But  it  is  to  be  remarked  that,  in  this  case,  there  was  no  doubt 
as  to  the  animus  ;  the  publication  was  clearly  libellous  in  itself, 
and -the  occasion  of  publishing  did  not  render  proof  of  malice  in 
fact  necessary.  As  nothing  turned  upon  the  defendant's  real  in- 
tention, the  evidence  was  inadmissible  ;  for  it  is  perfectly  clear  that 
subsequent  libels  cannot  be  received  in  evidence,  with  a  view  to 
enhance  the  damages,  for  they  are  substantive  and  independent 
causes  of  action.  And  in  the  subsequent  case  of  Stuart  v.  Lovell 
(#),  where  the  publication  declared  on  was  clearly  libellous,  Lord 
Ellenborough,  C.  J.  rejected  evidence  offered  of  the  publication 
of  subsequent  libels,  observing  that  such  evidence  would  certainly 
be  admissible  to  show  the  intention  of  the  defendant,  were  it  all 
equivocal,  but  that  they  were  not  admissible  for  the 
[  *55  ]  *purpose  of  enhancing  the  damages  [1].  A  case,  there- 
fore, of  equivocal  intention,  as  where  the  question  de- 

(x)  Finnerty  v.  Tipper,  2  Camp.  C.  72.         (y)  2  Starkie's  C.  93. 
His  Lordship  said  you   might  as  well  give 
in  evidence   one   highway   robbery   on  the 
trial  of  another. 

[1]  In  Thomas  v.  Crosstvell,  7  Johns.  R.  271.  Spencer,  J.  intimated  his  opinion  that 
subsequent  publications  were  not  admissible  in  evidence,  even  to  show  the  quo  animo ; 
though  he  deemed  it  unnecessary  to  the  right  adjudication  of  that  case  to  settle  the  rule 
of  law  upon  the  subject. 


MALICE.  55 

pcnds  on  the  existence  of  malice  in  fact,  differs  widely  in  this  re- 
spect from  one  which  admits  of  no  doubt  on  the  subject  ;  where 
such  a  doubt  exists,  and  where  the  material  question  in  the  cause 
is,  whether  the  defendant  was  justified  by  the  occasion,  or  acted 
from  express  malice,  it  seems,  id  principle,  that  any  circumstances 
are  admissible  which  can  elucidate  the  transaction  and  enable  the 
jury  correctly  to  conclude  whether  the  defendant  acted  fairly  and 
honestly  according  to  the  occasion,  or  main  fide  and  vindictively, 
for  the  purpose  of  causing  evil  consequences. 

In  an  action  for  a  malicious  prosecution  of  an  indictment  for  per- 
jury, evidence  was  admitted  of  an  advertisement  published  by  the 
defendant  pending  the  prosecution,  although  an  information  had 
been  granted  for  publishing  thai  advertisement  (;). 

In  an  action  for  words  imputing  perjury,  the  plaintiff  was  allowed 
to  prove  that,  subsequently  to  the  speaking  of  the  words,  the  de- 
fendant had  preferred  an  indictment  against  him  (a).  But  in  such 
cases  the  jury  are  not  to  consider  the  effect  *of  such  evi- 
dence in  measuring  the  amount  of  the  damages,  but  [  "5G  ] 
merely  as  a  circumstance  to  prove  malice  (&). 

It  was  once  doubted  whether,  in  admitting  evidence  of  this  na- 
ture, a  distinction  ought  not  to  be  made  between  words  not  action- 
able in  themselves  and  those  which  are  so.  In  the  case  of  Mead  v. 
Daubigny  (c),  Lord  Kenyon  rejected  evidence  of  words  actiona- 
ble in  themselves,  and  not  mentioned  in  the  declaration  ;  but  his 
lordship  afterwards  changed  his  opinion,  and  admitted  such  evi- 
dence in  a  subsequent  case  (d). 

In  Riissef  v.  'Macquister  (<?),  evidence  of  actionable  words  spoken 
after  the  time  of  those  laid  in  the  declaration,  was  objected  to,  on 
the  ground  that  if  such  words  were  taken  into  consideration,  by  the 
jury,  the  defendant  might  be  made  to  pay  a  double  compensation 
for  the  same  'injury,  since  another  action  might  be 
brought  for  the  words  last  spoken,  and  the  distinction  was  [  *57  ] 
taken  between  that  case  and  the  case  of  words  not  ac- 

{z)   Chambers  v.  Robi-ison,  Str.  691.  (9poken   of  a  tradesman)  were,  "  He   i9  a 

(a)    Tale  v.  Humjilircys,  2  Camp.  73,  n.  bankrupt  and    c:umot  pay  five  shilling  in 

Cor.  Graham,   B.  and  afterwards  by  the  the  pound;  he  is  not  fit  to  be  trusted;" 

court,  and  the  plaintiff  was  allowed  to  prove  that 

(6)  2  Camp.  C.  73.  on  another  occasion  the  defendant  had  said 

(c)  Peake's  C.  125.  that  the   plaintiff  had    called  his  creditors 

{d)  Lee  v.  Huson,  Peake's  C.    166.     R.  together  and    had  offered  them  a  composi- 

v.  Pearce,  ib.  75.     In  the   case  of  IVarnc  tion  of  five  shilling  in  the  pound. 

v.  Chadwell,  2  Starkie's  C.  457,  the  words         (?)  1  Camp.  49. 

37* 


57  CIVIL  REMEDY— EVIDENCE. 

tionable.  But  Lord  Ellenborough,  C.  J.  overruled  the  objection, 
observing,  that  though  such  a  distinction  had  once  prevailed,  it  was 
not  founded  in  principle ;  and  that,  although  no  evidence  can  be 
given  of  any  special  damage  not  laid  in  the  declaration,  yet  that 
any  words,  or  any  act  of  the  defendant,  is  admissible,  to  shew  quo 
animo  he  spoke  the  words  which  are  the  subject  of  the  action  [1] . 

Upon  the  same  principle  (/),  where  a  libel  was  contained  in  a 
political  paper  published  weekly  by  the  defendant,  after  proof  that 
the  paper  in  question  had  been  purchased  at  the  defendant's  office, 
evidence  was  admitted  of  the  previous  sale  of  other  papers  with  the 
same  title  at  the  same  office  ;  and  the  reason  of  admitting  it  was,  to 
shew  that  the  papers,  which  purported  to  be  weekly  publications  of 
public  transactions,  were  sold  deliberately,  and  vended  in  the 
regular  course  of  circulation  ;  that  the  paper  containing  the  libel 
was  not  published  by  mistake,  but  vended  publicly,  deliberately,  and 
in  regular  transmission  for  public  perusal. 

*58  ]  In  an  action  where  any  words,  or  other  libels,  *not 

specified  in  the  declaration,  are  offered  in  evidence,  the 
defendant  is  at  liberty  to  prove  the  truth  of  the  charges  or  imputa- 
tions which  they  contain,  for  he  had  no  opportunity  of  pleading  the 
truth  in  justification  (g"). 

It  has  already  been  seen  that,  to  support  an  action  by  a  servant 
against  a  former  master,  for  slander  in  giving  his  character,  the 
plaintiff  must  prove  that  the  character  was  both  falsely  and  mali- 
ciously given  (/i)  [2]. 

(/)  Phmkelt  v.  Cobbett,  5  Esp.  C.  93.  Wame  v.  Chadwell,  2  Starkie's  C. 
136.  457. 

(g)  See  Stuurt  v.  Lovell,  2  Starkie's  C.         (h)  Supra,  vol.  I.  p.  294. 


[1]  Similar  proof  was  received  in  Shock  v.  McChesney,  2  Yeates,  473,  and  in  Wal- 
lis  v.  Mease,  3  Binney,  546.  So  also  evidence  of  the  repetition  of  the  same  words  after 
suit  brought  was  received  in  Kean  v.  McLaughlin,  Serg.  &  Rawle,  469. 

[2]  From  the  decisions  made  on  the  subject  of  privileged  communications,  since  the 
publication  of  the  Second  English  edition  of  this  work,  the  following  cases  have  been 
selected. 

It  has  been  supposed  that  in  Fountain  v.  Boodle  (3  Queen's  Bench,  R.  5;  2  Gale  & 
D.  455,  S.  C.)  it  was  decided  that  proof  of  falsehood  in  a  character  given  of  a  servant  is 
prima  facie  evidence  of  malice.  But  it  is  not  so.  The  case  was  this:  in  answer  to  an  in- 
quiry as  to  the  character  of  a  governess,  the  defendant  wrote  a  letter  in  which  she  said, 
"  I  parted  with  her  on  account  of  her  incompetency,  and  not  being  lady-like,  nor  good 
tempered."  The  governess  had  been  employed  by  the  defendant  for  upwards  of  a  year, 
who  during  that  time  had  twice  recommended  her  to  similar  situations.  The  governess 
brought  an  action  for  the  writing  of  the  above  letter,  and  gave  evidence  tending  to  nega- 


MALICE.  58 

In  such  instances  the  plaintiff,  if  charged  with  dishonesty  and 
misconduct  in  the  defendant's  service,  is  at  liberty  to  prove  his 

tive  the  statements  in  it.  No  evidence  was  given  tor  the  defendant  On  the  trial  of  the 
cause  the  Judge  had  submitted  the  question  of  maZice  to  the  jury,  by  directing  them 
that  the  letter  itself,  anil  the  facts  of  the  case  proved  that  the  writer  wot  actuated  by  ex- 
press malice.  The  plaintiff  had  a  verdict,  and  on  a  motion  fur  a  new  trial  Lord  Den- 
ham,  C.  J.  conceded  tint  mere/ahehood  is  no  disproof  of  bonafidet,  and  that  the  main 
question  was,  whether  there  was  any  evidence  of  malice.  See  also  what  was  said  by 
Lord  Mansfield  on  this  Bubject  in  Lowry  v.  Aikenhead,  post,  p.  300. 

Express  malice  may  be  collected  from  slight  proof,  or  even  from  the  face  of  the  libel 
itself.  Kelly  v.  Partington,  2  Nev.  &  M.  160;  1  Barn,  &.  Aid.  700;  Wright  v.  U'uod- 
gatt,  2  C.  M.  &  R.  573;  1  Tyr.  &  G.  12. 

"  A  commnuicalion  of  suspicion  of  felony  is  not  necessarily  restricted  to  an  officer  of 
justice  to  entitle  it  to  be  considered  as  privileged;  when  made  to  others  it  is  for  a  jury 
to  say  whether  the  party  making  it  acted  in  good  faith."  Padmore  V.  Lawrence,  11 
Adol.  &  Ellis,  380. 

"  A  letter  from  a  son-in-law  to  his  mother-in-law,  volunteering  advice  respecting  her 
contemplated  marriage,  and  containing  imputations  upon  the  person  with  whom  she  is 
about  to  contract  matrimony,  is  a  privileged  communication  and  not  actionable  unless 
malice  be  shown.  Such  communications  arc  viewed  liberally  by  juries.  Todd  v.  Hawk- 
ins, 8  Carr.  &  Payne,  888;  2  M.  &  Rob.  20. 

"  Where  a  party  under  full  belief,  warranted  by  circumstances,  that  his  debtor  had 
committed  an  act  of  bankruptcy,  gave  notice  to  an  auctioneer,  not  to  part  with  the  pro- 
ceeds of  certain  goods  of  the  debtor  sold  by  him,  it  was  held  by  three  judges  to  one  that 
the  communication  was  privileged."     Blarkham  v.  Puyh,  2  Mann.  Gr.  &  Sc.  611. 

A  party  communicated  to  a  ship  owner  a  letter  representing  the  master  of  his  ship  as  a 
drunkard,  neglectful  of  his  duty,  and  endangering  the  lives  of  passengers,  and  the  safety 
of  ship  and  cargo.  This  communication  was  made  to  the  ship  owner  in  good  faith  and 
from  a  sense  of  duty,  but  without  any  knowledge  of  the  truth  of  the  charges  other  thau 
that  derived  from  the  letter.  In  consequence  of  this  communication  the  master  was 
discharged  from  service,  and  he  brought  an  action  against  the  party  receiving  the 
letter,  who  undertook  to  justify  but  failed  to  support  his  plea  by  proof.  HaviDg 
however  also  pleaded  other  pleas  he  obtained  a  verdict  under  the  charge  of  the 
presiding  judge  that  in  the  absence  of  malice  infant  the  publication  of  the  letter  was 
privileged.  The  plaintiff  obtained  a  rule  nisi  for  a  new  trial  for  misdirection.  The 
case  was  twice  argued;  the  second  time  at  the  request  of  the  court.  After  the  second 
argument  Chief  Justice  Tindai.  and  Erle,  J.,  held  that  the  publication  was  a  privileged 
communication;  Coltman  and  Gbbbwell,  Justices,  held  the  contrary,  and  insisted  that 
the  defendant  was  a  volunteer  in  making  the  communication;  that  no  relations  existed 
between  him  and  the  ship  owner  justifying  what  lie  had  done,  lie  was  neither  his  agent, 
nor  was  there  any  relationship  or  intimacy  existing  between  them;  nor  had  any  inquiry 
been  made  as  to  the  truth  of  the  charges.  The  judges  who  held  the  communication 
privileged,  rested  their  opinions  chiefly  upon  the  ground  that  it  was  the  moral  duly  of 
the  defendant  to  make  the  communication;  whilst   the  other  j  ted  that  the  de- 

fendant was  under  no  legal  or  moral  duty  to  make  the  communication;  that  the  moral 
duty  of  the  defendant  not  to  publish  defamatory  charge*  which  he  did  not  know  to  be 
true,  was  quite  as  strong  as  the  duty  to  communicate  to  the  ship  owner  that  which  he 
believed  to  be  true.  The  court  being  equally  divided,  the  verdict  was  permitted  to  stand, 
and  the  question  remains  res  integra.  Coxhcat  v.  Richards,  10  Jurist,  p.  984,  anno 
1846. 


58  CIVIL  REMEDY— EVIDENCE. 

good  character  and  conduct  in  former  services,  since  general  char- 
acter is  in  some  respects  in  issue ;  so  the  plaintiff  may  prove,  by 
the  evidence  of  other  servants  in  the  same  family,  that,  whilst  he 
remained  in  the  defendant's  service,  he  conducted  himself  well,  and 
that  no  complaints  of  the  nature  ascribed  to  him  by  the  defendant 
then  existed  (t).'  And  the  tendency  and  bearing  of  this  evidence 
is  to  shew,  that  the  defendant  kneiv  that  the  character  which  he 
gave  was  false :  the  .plain  reason  for  this  is,  that  the  knowledge  of 
misconduct  frequently  rests  with  the  defendant  himself; 
[  *59  ]  and,  being  unable  to  *prove  it  by  the  testimony  of  others, 
if  the  general  presumption  were  to  operate  against  him, 
he  would  be  left  without  defence.  To  prevent  such  inconvenience, 
the  law  requires  malice  to  be  proved  from  other  sources.  In  case, 
however,  the  plaintiff  should  be  able  expressly  to  prove  that  the 
defendant  was  aware  of  the  falsity,  no  further  proof  of  malice 
would  be  requisite  ;  nor,  indeed,  could  stronger  proof  of  it  be  ad- 
duced than  that  the  defendant  had  given  a  character  of  the  plaintiff 
injurious  to  his  reputation,  with  a  full  knowledge  that  it  was  untrue. 
The  circumstances  under  which  the  master  and  servant  parted, 
any  expressions  of  ill  will  uttered  by  the  former,  his  officiously  ac- 
quainting others  with  the  servant's  misconduct,  without  any  previ- 
ous application  to  him  for  a  character,  are  all  facts  which  are  pro- 
per for  the  consideration  of  a  jury  to  enable  them  to  form  their 
opinion  upon  the  question  of  intention. 

The  plaintiff  cannot  in  ordinary  cases,  where  no  justification  is 
pleaded,  adduce  evidence  of  the  falsity  of  the  charge,  either  to  shew 
malice  or  enhance  the  damage  (&)  ;  for,  unless  the  defendant  shew 
that  he  was  justified  by  the  occasion,  malice  will  be  inferred,  and 
therefore  need  not  be  proved  ;  and  in  the  absence  of  express  alle- 
gations and  proof  of  the  plaintiff's  guilt,  his  innocence 
[  *60  ]  *will  be  presumed  (7).  It  has  even  been  said,  that  al- 
though the  defendant  had  pleaded  a  justification,  charging 
the  plaintiff  with  having  stolen  money  from  the  defendant,  the 
plaintiff  could  not  give  general  evidence  of  good  character  (in). 

(t )  3  B.  &  P.  589.  fence,  it  would,  as  it  seems,  be  admissible 

(/<•)   Stuart  v.  Lovell,  2  Starkie's  C.  93.  for  tbat  purpose. 

(0  But    as  the  defendant's  knowledge         (m)   Cornwall  v.  Richardson,  1  R. 

that    the  charge  was    untrue,    where    he  305.     Cor.  Abbott,  L.   C.   J.     It  appears, 

sought  to   protect  himself  under   color  of  however,  from   the  report  of  this  case  that 

the  occasion  of  speaking  or  writing,  would  his  lordship  interposed  rather  in  favor  of 

be  conclusive  evidence  to  overturn  the  de-  the  plaintiff,  in  cautioning  his  counsel  that, 


MALICE. 


60 


*Whcre  the  inference  of  malice  and  ill-will,  arising 
from  the  very  nature  of  the  words  or  libel,  is  not  repelled  [  *G1  ] 
by  the  occasion  and  circumstances  of  the  speaking  or 
publishing,  no  evidence  of  malice  is  of  coarse  expected  from  the 
plaintiff;  and  any  overt  act  of  publication  imposes  the  burthen  of 
explanation  upon  the  defendant,  since  it  will  be  presumed  that  the 
party  knew  the  contents  of  that  which  he  published.  Thus  it  has 
been  seen,  that  a  bookseller  is,  in  the  first  instance  presumed  to 
know  the  contents  of  any  book  sold  at  his  shop,  and  on  proof  of  the 
Bale,  the  contents  arc  so  far  considered  to  have  been  fixed  upon 
him,  that  the  plaintiff  is  entitled  to  have  them  read  in  evidence  So 
far  has  this  species  of  presumption  been  carried,  that  it  has  been 
held  that,  upon  an  indictment  for  sending  a  threatening  letter,  the 
bare  delivery  of  it,  though  sealed,  was  prima  facie  evidence  of  a 
guilty  knowledge  of  its  contents  (w) 

*Whcrc  the  special  damage  is  essential  to  the  action  "<!2  ] 
the  plaintiff  must  prove  it  according  to  the  allegations  in 
his  declaration  (o)  It  must  be  shewn  that  the  damage  alleged  and 
proposed  to  be  proved,  was  the  natural  and  immediate  consequence 
of  the  slander.  The  general  rule  is,  that  no  evidence  of  special 
damage  is  admissible,  unless  it  be  averred  in  the  declaration,  whe- 
ther special  damage  be  the  gist  of  the  action,  or  be  used  as  matter 


if  such  evidence  were  received  it  would 
afford  the  defendant  an  opportunity  of  giv- 
ing general  evidence  to  the  contrary,  than 
that  lie  expressly  ruled  the  point.  The 
plaintiff,  it  seems,  where  a  justification  is 
pleaded,  is  at  liberty  to  go  into  the  whole 
of  his  case,  BDd  therefore  may,  it  should 
seem,  in  principle,  adduce  any  evidence 
which  tends  to  prove  it;  but,  as  he  is  not 
allowed  to  prove  a  particular  issue  by 
piecemeal,  it  is  probable  that,  if  he  gave 
evidence  of  good  character,  in  anticipation 
of  the  defendant's  case,  in  justification,  he 
would  not  be  allowed  afterwards  to  go  into 
a  general  case,  by  way  of  reply  to  the  de- 
fendant's evidence.  See  Pierrepuint  v. 
Shapland,  1  Car.  &  P.  44S;  and  therefore, 
where  there  is  reason  to  apprehend  that  the 
defendant  intends  to  rely  on  such  a  justifi- 
cation in  evidence,  and  the  plaintiff  has 
proof  in  answer,  it  would  be  impolitic  and 
dangerous  to  adduce  any  part  of  it  by  way 


of  anticipation.  In  the  case  of  King  v. 
Waring  and  vx.  5  Esp.  C.  13,  e\  idence  of 
the  plaintiff's  previous  good  character,  as 
a  servant,  was  admitted;  but  there  the  ac- 
tion was  brought  against  a  former  mistress, 
and  the  alleged  libel  was  written  in  a  let- 
ter, in  which  the  defendant,  professing  to 
give  the  plaintiff's  character,  charged  her 
with  dishonesty  and  misconduct;  and,  in 
such  a  case,  the  falsity  of  the  imputation 
and  express  malice  are  essential  to  the  ac- 
tion. The  general  rule  seems  to  be,  that 
evidence  of  good  character  is  not  receivable 
until  it  has  been  impeached.  See  Starkic 
on   Evidence,  pt   i  I,  917,  1310. 

Bat  whilst  the  plea  of  justification  stands 

on  the  record,  the  plaintiff's  character  is, 
as  it  seems,  in  question. 

(n)  R.  v.   Qirdwood,  Leach,  C.   C.   L. 
169. 

(o)  Supra,  vol.  I.  p.  439. 


62  CIVIL  REMEDY— EVIDENCE. 

of  aggravation,  the  words  being  in  themselves  actionable  (;?).  But 
it  has  been  said,  that  greater  certainty  is  requisite,  where  the  spe- 
cial damage  is  the  gist  of  the  action,  than  where  it  is  merely  laid 
by  way  of  aggravation  (7). 

Where  the  damage  consists  in  loss  of  marriage,  the  plaintiff  can- 
not, without  specifying  the  individual   with  whom  the  marriage 
would  otherwise  have  been  contracted,  give  evidence  of  the  loss  (V). 
So  if  he  allege  loss  of  marriage  with   M.   N.,  he  cannot 
[  *63  ]     give  *in  evidence  loss  of  marriage  with  any  other  per- 
son (.9). 

In  an  action  for  slander,  by  which  the  plaintiff  has  lost  his  cus- 
tomers, he  cannot  give  in  evidence  the  loss  of  any  whose  names  are 
not  specified  in  the  declaration  (t).  But  where  it  is  alleged,  as 
special  damage,  that  the  plaintiff  was  prevented  from  selling  his 
estate,  and  that  the  bidding  was  prevented  by  the  act  of  the  de- 
fendant, the  fact  may  be  proved,  although  the  names  of  particular 
bidders  are  not  specified ;  for  the  loss  is  the  preventing  of  the 
sale(w),  and  proof  that  persons  would  have  purchased  is  evidence 
of  such  prevention. 

Where  the  plaintiff  alleged  that  he  had  been  employed,  from 
time  to  time,  to  preach  to  a  congregation  of  dissentersj  and  that,  by 
reason  of  the  words  the  persons  frequenting  the  chapel  had  wholly 
refused  to  permit  him  to  preach  there,  and  had  discontinued  to  give 
him  the  gains  and  profits  which  they  otherwise  would  have  given, 
the  court,  after  a  verdict  for  the  plaintiff,  on  motion  in  arrest  of 
judgment,  held  that  the  allegation  of  damage  was  suffi- 
[  *64  ]  cient ;  for  he  could  not  have  *stated  the  names  of  all  his 
congregation  (.r).  In  such  a  case,  therefore,  it  should 
seem  that  general  evidence  of  the  loss  of  emolument  would  be  ad- 
missible. 

Where  the  special  damage  was  alleged  to  be  the  loss  of  the  pro- 
fits of  several  performances  at  a  place  of  public  amusement,  it  was 
held  that  the  witnesses  might  be  examined  generally  as  to  the  dimi- 

(p)  B.  N.  P.  7.     1  Will.  Saund.  243,  n.  v  Periam,  2  Atk.  33.  Supra,  vol.  I  p.  239. 

5.     It  was  formerly   held,  that  where  spe-  (r)  Barnes  v.  Prudling,  1  Sid.  396.     2 

cial  damage  was  the  gist  of  the  action,  such  Vent.  4.     Hunt  v.  Jones,  Cro.  J.  499.     12 

special  damage  might  be  given  in  evidence,  Mod.  597. 

although  the  particular  instances  were  not  (s)  Lord  Raym.  1007. 

specified,  otherwise  where   the  words  were  (t)  8  T.  R.  130. 

actionable.     Str.  G6G.  .  («)  See  Snead  v.  Badley,  Cro.   J.  397. 

(<j)  Per  Cur.  in  Wetherell  v.  Clerkson,  Sir  W.  Jones,  196. 

12  Mod.  597.    2  Lutw.  1295.     See  Clarke  (x)  Hartley  v.  Herring,  8  T.  R.  130. 


DAMAGE.  64 

nution  in  the  receipts,  but  that  they  could  not  be  asked  whether 
particular  persons  had  not  given  up  their  boxes  (//)  [a  a]. 

The  plaintiff  must  also  prove  that  the  damage  was  the  e.jnsequcnce 
of  the  defendant's  act. 

The  connection  between  the  wrong  done  by  the  defendant  and 
the  loss  to  the  plaintiff  is  matter  of  evidence. 

It  is  nevertheless  a  rule  of  law  that  the  damage  must  be  the  natur- 
al and  immediate  consequence  of  the  wrongful  act.  The  defendant 
asserted  that  the  plaintiff  had  cut  his  master's  cordage,  upon  which 
the  master  had  discharged  the  plaintiff  from  his  serviee,  although 
he  was  under  an  engagement  to  employ  him  for  a  term  ;  but  the 
court  held  that  the  discharge  was  not  a  ground  of  action, 
since  it  was  not  the  natural  consequence  *of  the  words  *65   J 

spoken  (c)  ;  the  damage  must  be  attributable  wholly  to 
the  words. 

Where  the  reason  which  a  party  assigned  for  not  employing  the 
plaintiff  was  founded  partly  on  the  defendant's  words  and  partly 
on  the  eireumstance  that  he  had  been  previously  discharged  by  an- 
other master,  it  was  held  that  no  action  was  maintainable  (a). 
Where  the  refusal  of  a  third  person  to  deal  with  the  plaintiff  in  the 
way  of  his  trade,  is  alleged  as  special  damages,  evidence  is  not  ad- 
missible of  the  reason  given  by  the  customer  to  the  plaintiff's  agent 
for  ceasing  to  deal  ;  the  customer  himself  must  be  called  to  prove 
his  motive  (b) . 

Where  the  defendant  libelled  a  performer  at  a  place  of  public 
entertainment,  in  consequence  of  which  she  refused  to  sing,  and 
the  plaintiff  alleged,  as  special  damage,  that  his  oratorios  had,  in 
consequence,  been  more  thinly  attended,  it  was  held  by  the  judge, 
on  the   trial,  that   the  injury  was   too  remote  (c),  and  that  it  did 

(y)  Ashley  v.  Harrison,!  Esp.  C.  48  (=)  Vicars  v.  Wilcox,  B  East,  1;  and 
[a  a]  The  declaration  alleged  that  cer-  Bee  Morris  v.  Langdale,  2  B.  and  P.  184, 
tain  persons,  (naming  them),  who  would  where  it  was  doubted  •whether  the  occasion- 
otherwise  have  employed  the  plaintitF,  re-  injz;  a  third  person  to  break  his  contract 
fused  so  to  do;  the  proof  was,  that  by  rea-  with  the  plaintitF  was  a  sufficient  special 
son  of  the  speaking  of  the  words,  the  per-  damage,  since  the  plaintiff  might  obtain 
sons  named  would  have  recommended  him  satisfaction,  by  action,  lor  the  breach  of 
to  others,  which  others,  had  he  been  so  re-  contract;  and  vide  supra,  vol.  I. .p.  204. 
commended,    would   have   employed    him;  (a)  8  East,  1. 

held  that  the  declaration  was  not  supported  (b)    Tilk  v.  Parsons,  2  C.  and   P.   201. 

by  the  evidence,  for    the   non -performance  Cor.  Best,  C.  J. 

arose  from  the  non-recommendation.  Stroiiy  (c)  Lcrl  Kenyon,  Ashley  v.  Harrison, 

v.  Fonnan,  2  C.  and  P.  692.  1  Esp.  C.  48. 


65  CIVIL  REMEDY— EVIDENCE. 

[  *QQ  ]     not  *appear  but  that  the  refusal  to -perform  arose  from 
caprice  or  indolence. 
The  plaintiff,  having  once  recovered  damages,  cannot  afterwards 
recover  any  ulterior  compensation  for  any  loss  resulting  from  the 
same  words  (c). . 

It  has  been  said  that  the  plaintiff,  in  an  action  for  a  malicious 
prosecution,  may  give  in  evidence  the  circumstances  of  the  defend- 
ant, in  order*  to  increase  the  damages.  The  principle,  however, 
upon  which  such  evidence  is  allowable,  is  not  very  obvious,  and 
scarcely  can  be  warranted  unless  the  situation  and  rank  of  the  de- 
fendant have  affected  the  quantum  of  prejudice  sustained  by  the 
plaintiff". 

Where  the  words  or  libel  are  in  themselves  actionable,  no  proof 
of  special  damage  is  necessary,  although  such  special  damage  should 
be  alleged.     But  the  plaintiff  cannot  in  that  case,  any  more  than 
where  the  special  damage  is  the  gist  of  the  action,  give  evidence  of 
any  consequential  damage,  which  is  not  alleged  in  the  declaration. 
Where,  in  addition  to  the  general  issue,  issues  are  joined  on  affir- 
mative pleas. of  justification,  the  plaintiff's  counsel  may  either  in  the 
first  instance  rebut  the  justification,  or  he  may  wait  till 
*67  ~      the  defendant  has  offered  affirmative  evidence  *in  proof 
of  his  justification,  but  he  cannot  divide  his  proof  by  giv- 
ing part  in  evidence  in  the  first  instance  and  part  afterwards  (ct). 

Where  the  defendant  has  suffered  judgment  by  default,  it  is  not 
incumbent  on  the  plaintiff  to  adduce  any  evidence  on  the  execution 
of  the  writ  of  inquiry  to  assess  the  damages. 

The  proofs  in  an  action  for  a  malicious  prosecution  are,  1st,  Of 
the  prosecution  ;  2udly,  Of  the  defendant's  malice,  and  the  want  of 
probable  cause  ;  3dly,  of  probable  cause  ;  Of  damage  to  the  plaintiff. 
1st.  A  prosecution  by  the  defendant,  from  which  the  plaintiff  has 
been  discharged.  If  the  prosecution  was  in  the  King's  Bench,  at 
the  assizes,  or  quarter  sessions,  the  fact  of  prosecution  and  acquittal 
must  be  proved  in  the  usual  way,  by  the  production  of  the  record, 
or  proof  of  an  examined  copy  of  it  (e).  It  is  no  objection  to  this 
proof,  that  no  order  of  court,  or  fiat  of  the  attorney  gene- 
[  *68  ]     ral,  allowing  a  copy  of  it  to  the  party  acquitted  in  a  *case 

{(l)  Brown  v.  Murray,  1  R.  and  M.  254.  (c)  B.  N.  P.  7. 

Sylvester  v.  Hall,  ib.     See  Recs  v.  Smith,  (e)  See  Clayton  v.  Nelson,  B.  N.  P.  13. 

2  Starkie's  C.    31.     Delauny  v.  Mitchell.  Kirk  v.  French,  1  Esp.  C.  81.     Morrison 

1  Starkie's  C.  439.     Spooner  v.  Gardiner,  v.  Kelly,  1  Bl.  R.   385.     Starkie  on  Evi- 

R.  and  M.  86.     Pierrepoint  v.  Shapland,  dence,  tit.  Malicious  Prosecution. 
1  Carr.  and  P.  448. 


MALICIOUS  PROSECUTION. 


68 


of  felony,  is  proved  (/).  It  must  appear  that  the  plaintiff  was  ac. 
quilled  of  the  charge  (g)  ;  it  is  not  sufficient  to  prove  that  the  pro- 
ceeding was  stayed  by  the  nolle  prosequi  of  the  attorney-general  (li)  : 
otherwise  if  he  had  pleaded  not  guilty,  and  the  attorney-general 
had  confessed  it  (t)  ;  and  it  is  sufficient  that  the  #party 
was  acquittal  upon  ;i  delect  in  the  indictment  (K).  [  *69   ] 

Some  proof  ought  to  be  given  of  identity  of  the  plaintiff 
with  the  party  prosecuted.  In  order  to  prove  that  the  defendant 
was  the  prosecutor,  it  may  be  desirable  to  be  prepared  with  the  origi- 
nal bill  of  indictment,  for  although  the  names  of  the  witn  - 
the  back  of  the  bill  arc  no  part  of  the  record,  it  is  evidence  that  they 
were  sworn  to  the  bill  (/)  ;  but  it  maybe  proved  that  the  defendant 
was  a  witness,  without  producing  the  bill  (m)  ;  and  the  indorsement 
of  the  party's  name  as  a  witness  on  the  bill  is  no  evidence  that 
he  was  the  prosecutor  (n).     Where  the  defendant  merely  acted  as  a 


(/)  Leggali  v.  Tollervey,  14  East,  802. 

Jordan  v.  Letcis,  2  Str.  1122.  And  Ford's 
M.  S.  The  case  of  Leggutt  v.  Tollervey, 
above  cited,  overruled  that  of  Guinn  v. 
Phillips,  Monmouth  summer  assizes,  1703, 
where  Adams,  B.  held,  that  a  copy  of  the 
record  in  felony  ought  not  to  be  received, 
unless  it  had  been  ordered  by  the  judge, 
(see  Selw.  N.  P.  1063).  But  he  held  that 
in  all  cases  of  indictments  for  misdemean- 
ors, a  defendant  is  entitled  to  a  copy  of  the 
record.  And  the  same  distinction  was 
taken  by  Lord  ."Mansfield,  C.  J.  in  Morrison 
v.  Kelly,  1  Bl.  R.  o8j,  where  the  prosecu- 
tion, however,  had  been  for  a  misdemeanor. 
Among  the  orders  and  directions  to  be  ob- 
served by  justices  of  the  peace,  at  the  "Old 
Bailey,  2  G.  c.  '_'.  prefixed  to  Kelyng's 
Crown  Cases,  is  one  which  directs  "  that  do 
copy  of  any  indictment  for  felony  be  given 
without  special  order,  or  motion  made  in 
the  open  court,  at  the  general  gaol  deliv- 
ery; because  the  Late  frequency  of  actions 
against  prosecutors,  which  cannot  be  with- 
out copies  of  the  indictments,  di 
people  from  prosecuting  for  the  king  upon 
just  occasions." 

(</)   Hunter  v.  French,  Willes,  517. 

(h)  Goddard  v.  Smith,  0  MoJ.  202;  for 
notwithstanding   the  nolle  proicqui,  fresh 

Vol.  II.  38 


process  may  be  sued  out  upon  the  indict- 
ment. Ibid,  per  Ld.  Holt;  hut  it  was  said 
that  there  had  been  no  instance  of  any  fur- 
ther proceeding  after  a  nolle  prosequi.  Ibid. 
S.  C.  Salk.  21.  Note  that  the  declaration 
alleged  an  acquittal,  but  the  court  held 
that  the  entry  of  a  nolle  prosequi,  did  not 
amount  to  an  acquittal. 

(0  Ibid. 

(/<•)    Wicks  v.  Fcntham,  4  T.  R.  247. 

(I)  Per  Holt,  C,  J.  in  Johnson  $  ux.  v. 
Browning,  6  .Mod.  210. 

(w)  Ibid,  per  Ld.  Holt. 

(rt)  lVent.  47.  B.  N.  P.  14.  It  is  a  ques- 
tion of  fact  for  the  jury  to  determine,  who 
was  the  prosecutor.  Ld.  Ellenborough,  C. 
J.  in  R.  v.  Cromwell,  1  M.  and  S.  207, 
observed,  that "  in  an  Jlction  for  a  malicious 
prosecution,  if  the  prosecutor  be  kept  out 
of  sight,  it  sometimes  becomes  a  point  of 
very  subtle  evidence  to  determine  who  is 
the  prosecutor;  but  id  ceitum  est  quod  cer- 
ium reddi  potest  ;  and  it  is  a  question  to 
be  ascertained  by  inquiry  and  evidence." 
See  also  R.  v.  Smith,  1  Burr.  64.  R.  v. 
Ketiletoorth,  5  T.  II.  88,  in  neither  of 
whioh  was  the  prosecutor's  name  in  the  in- 
dictment. Sometimes  it  is  the  business  of 
the  court  to  make  the  inquiry.  lb.  and  R. 
v.  Incledon,  1  Bl  and  S.  208. 


69  CIVIL  REMEDY— EVIDENCE. 

[  *70  ]  magistrate,  the  *proof  of  his  name  on  the  back  of  the 
indictment,  as  prosecutor,  will  not  render  him  liable  (o). 
The  proper  evidence  to  establish  this  fact  is,  that  the  defendant 
employed  an  attorney  or  agent  to  conduct  the  prosecution  ;  that  he 
gave  instructions  concerning  it ;  paid  the  expenses  ;  procured  the 
attendance  of  witnesses,  or  was  otherwise  active  in  forwarding  the 
prosecution.  It  has  been  said,  that  a  grand  juror  may  be  called  to 
prove  that  the  defendant  was  the  prosecutor  (/?)  ;  this,  however, 
appears  to  be  doubtful. 

Where  the  substance  only  of  the  charge  contained  in  the  judg- 
ment or  information  before  a  magistrate  is  alleged,  it  seems  that 
a  variance  will  not  be  material,  unless  the  charge  itself  be  differ- 
ent (g). 

If  the  proceeding  was  by  preferring  a  charge  before  a  magistrate, 
the  magistrate  or  his  clerk  should  be  served  with  a  sub- 

*71  ]  pasna  duces  tecum,  to  *produce  the  proceedings  (r).  If 
the  information  was  laid  by  the  defendant,  his  taking  the 
oath,  and  hand-writing,  should  be  proved,  as  also  the  issuing  the 
warrant  to  the  constable,  &c.  ;  the  warrant  must  also  be  produced 
and  proved,  and  evidence  must  be  given  of  the  apprehension  and 
detention  of  the  plaintiff  under  the  warrant,  and  his  ultimate  dis- 
charge must  also  be  shown. 

Where  evidence  was  given  of  the  loss  of  the  warrant,  parol  evi- 
dence of  its  contents  was  admitted  without  proof  of  the  informa- 
tion (5). 

2dly.  Malice  and  the  want  of  probable  cause. — If  a  party  prose- 
cute another  on  a  criminal  charge,  it  is  a  rule  of  law,  which  seems 
to  be  founded  upon  principles  of  policy  and  convenience,  that  the 

(0)   Girlinglon  v.  Pitjield,  1  Vent.  47.  formation  before  a  magistrate,  and  evidence 
(p)  Sykes  v.  Ddnbar,  Selw.  N.  P.  106G  was  offered  of  an  admission  by  the  defend- 
7th  ed.     This  evidence  is  said  to  have  been  ant  that  he  had  laid  an  information  before 
admitted  by   Ld.  Kenyon,  on  the   ground  a  magistrate,  and  it  appeared  from  the  evi- 
tbat  this  was  a   question  of  fact,  the   dis-  dence  of  the  magistrate's  clerk,  that   the 
closure  of  which  did  not  involve   a  breach  practice  was  to  take  such    information  in 
of  the  grand  juryman's  oath;  but   yet  it  writing,  but  no  evidence  was  given  of  the 
seems,  that  either   the  witness  must  dis-  information  itself,    the  plaintiff  was   non- 
close  the  whole  that  passed,  or  the  defend-  suited.     Smith  v.  Walker,  Cor.  Bayley,  J. 
ant  would  be  precluded  from  ascertaining,  York  summer  assizes,  1821. 
upon  cross-examination,  the  grounds  from         (s)  Newsam  v.  Carr,  2  Starkie's  C.  70. 
which  the  witness  drew  his  general  infer-  Cor.  Wood,  B.  Note,  it  did  not  appear  that 
ence  that  the  dofen  lint  was  the  prosecutor,  any  information  had  been  taken,  and  yet  it 
(q)  Supra,  vol.  I.  p.  446.  seems  that  it  is  to  be  presumed  in  a  case  of 
(r)  Where  the  declaration  alleged  an  in-  felony  that  one  has  been  taken. 


MALICIOUS  PROSECUTION'. 


71 


prosecutor  shall  be  protected  in  so  doing,  however  ma- 
licious his  private  motives  *may  have  been,  provided  be      "  *72  ] 
had  probable  cause  (/)  for  preferring  the  charge. 

This  protection  appears  to  be  not  only  one  of  convenience,  !>ut  of 
justice,  or  even  of  necessity,  when  it  is  considered  how  often  it  hap- 
pens that  the  facts  upon  which  a  prosecution  is  properly  founded  are 
confined  to  the  knowledge  of  the  prosecutor  alone  ;  and  if  this  proof 
were  not  to  be  required  on  the  part  of  the  plaintiff,  every  prosecutor 
would  in  such  a  case  be  left  exposed  to  an  action,  against  which  he 
might  have  no  defence  (m),  if  malice  were  to  be  inferred  from  the 
apparent  want  of  probable  cause. 

*It  has  already  been  seen,  that  what  will  amount  to         *73 
probable  cause,  may  be   either  a  question  of  laiv,  to  be 
decided  by  the  court  on  the  particular  facts,  as  found  by  the  jury, 
or  may  be  a  conclusion  or  inference  of  fact  to  be  drawn  by   the 
jury(.t).     Evidence  of  the  express  malice  will  not  dispense  with 
proof  of  the  absence  of  probable  cause  (//). 

Where,  upon  an  indictment  for  a  malicious  prosecution  for  perjury, 
it  appeared  that  part  of  the  affidavit  on  which  perjury  had  been 


(t)  1  T.  R.  520.  1  Salk.  14,  15,  21;  5 
Mod.  391,  405.  1  Vent.  8G.  Carth.  415. 
Where  a  party  robbed  or  injured  merely 
states  actual  facts  to  a  magistrate,  on 
which  the  latter  acts  accoi'ding  to  his  own 
discretion,  the  action  it  seems  is  not  main- 
tainable. The  complainant  cannot,  in  pro- 
priety, be  said  to  be  the  prosecutor  of  the 
person  against  whom  the  magistrate  may 
think  fit  to  issue  his  warrant;  and  whether 
there  be  or  be  not  probable  cause  for  issu- 
ing the  warrant,  there  was,  at  all  events, 
probable  oaase  for  making  the  statement, 
and  no  malice  can  be  inferred  from  a  mere 
statement  of  facts  according  to  the  truth. 
Where  the  defendant  went  before  a  magis- 
trate, and  state  1  the  fact  of  his  having  lost 
a  bill  of  exchange,  and  the  magistrate's 
clerk  stated  the  substance,  but  added  that 
the  plaintiff  bad  feloniously  stolen  the  bill; 
there  being  no  evidence  of  malice  on  the 
part  of  the  defendant,  it  was  held  that  the 
plaintiff  had  been  properly  nonsuited.  Co- 
hen v.  Morgan,  6  D.  &  R.  8. 

(u)  See  Ld.  Kenyon's  observations  in 
Sykes  v.  Dunbar,  1  Camp.   202,  in  note  ; 


and  in  Smith  v.  Macdonall,  3  Esp.  C.  6. 
These  reasons  do  not,  as  has  been  seen,  ap- 
ply to  a  case  where  a  party  makes  an  extra- 
judicial charge  against  another. 

(x)  Supra,  vol.  I.  p.  279.  Where  a 
felony  has  been  committed,  though  not  by 
the  plaintiff,  a  private  person  may  justify 
not  only  a  prosecution,  but  even  an  actual 
arrest,  if  he  acted  on  fair  and  reasonable 
grounds  of  suspicion.  But  in  an  action  of 
trespass,  it  would  be  necessary  that  the  de- 
fendant (not  being  a  peace  officer,)  should 
plead  specially  the  grounds  on  which  he 
acted.  See  Mure  v.  Kuye,  1  Taunt.  '.'A. 
MCloughan  v.  Clayton,  '2  Starkie's  C. 
1 15.  Haw.  b.  "J,  e.  12,  s.  15.  In  such  ca- 
ses, therefore,  it  may  be  a  question  of  law 
for  the  court,  whether  the  circumstances 
were  sufficient  to  justify  an  arrest. 
who  did  not  himself  believe,  on  facts  with- 
in his  knowledge,  that  the  party  w:rs  guilty 
would  be  justified  in  making  an  arrest. 
Haw.  b.  2,  e.  12,  s.  16.  Sir  Anthony  Ash- 
ley's ca^e,  12  «'o.  92. 

{y)   Turner  v.  Turner,  1  Gow.  50. 


CIVIL  REMEDY— EVIDENCE. 


assigned  had  been  falsely  sworn,  but  that  there  was  no  probable 
cause  for  some  assignments  of  perjury,  on  some  of  the 
*74    ]    "transactions  contained  in  the  affidavit,  it  was  held  that 
the  action  was  maintainable  (?/),  for  there  being  no  prob- 
able cause  for  some  of  the  charges  in  the  indictment,  it  was  pre- 
ferred with  probable  cause  (Y). 

The  fact  of  ma/ice,  which  is  a  question  for  the  jury  (a), 

'   *75     |    is  usually  inferred  from  the  want  of  any  *probable  cause 

for  the  prosecution  (6).     No  evidence  of  malice  can  be 

more  cogent  than  the  proof  that  the  defendant  knew  that  the  plaintiff 

was  innocent  £  a  a  ] . 

It  is  invariably  necessary,  in  an  action  of  this   nature,  to  give 
some  positive  evidence,  arising  out  of  the  circumstances  of  the  pros- 


(y)  Reed  v.  Taylor,  4  Taunt.  G16. 

(z)  PerGibbs,  C.  J.      Reed  v.  Taylor, 
4  Taunt,  616. 

(a)  See  Johnstone  v.  Sutton,  1  T.  R. 
543.  Yet  there  may  be  cases  so  circum- 
stanced, that  though  the  courts  might  not 
go  so  far  as  to  infer  malice  in  point  of  law, 
without  the  aid  of  a  jury,  yet  they  would 
leave  it  to  the  jury  to  imply  malice.  Where 
a  bank  inspector,  in  the  absence  of  circum- 
stances which  would  justify  suspicion, 
charged  the  holder  of  a  forged  bank-note, 
which  he  had  refused  to  give  up  to  the  in- 
spector, with  a  felonious  possession  of  the 
note,  Ld.  Ellenborough  said,  that  to  press 
for  a  commitment,  under  such  circumstan- 
ces, was  such  a  crassa  ignorantia,  that  it 
amounted  to  malice.  Brookes  v.  War- 
wick, 2  Starkie's  C.  389.  See  also  Isaacs 
v.  Brand,  2  Starkie's  C.  167.  Supra, 
vol.  I.  p.  282,  in  the  note.  The  defendant 
had  held  the  plaintiff  to  bail,  as  adminis- 
tratrix, for  a  debt  due  from  the  estate;  and 
upon  the  trial  of  the  action,  for  maliciously 
holding  to  bail,  the  plaintiff  relied  wholly 
on  the  mere  fact  of  her  having  been  held  to 
bail,  when  she  was  not  liable  to  arrest,  and 
gave  no  extrinsic  evidence  of  malice.  The 
jury  having  found  a  verdict  for  the  plain- 
tiff, with  five  shillings  damages,  the  court 
upon  a  motion  for  a  new  trial,  doubted 
whether  the  very  fact  of  holding  the  party 
to  bail,  under  such  circumstances,  was  not 
evidence  from  which  malice  was  to  be  im- 


plied, and  refused  to   disturb  the  verdict. 
Fletcher  v.  Webb,  11  Price,  381. 

(6)  Incledonv.   Berry,  1    Camp.  403. 
Saville  v. Roberts,  1  Salk.  14.  Ld.  Ray.  374- 

[<z  «]  Where  an  indictment  had  been 
preferred  against  the  plaintiff  and  another, 
and  a  copy  had  been  obtained  on  behalf  of 
the  latter  only,  it  was  held  that  the  plain- 
tiff was  entitled  to  use  it  in  evidence,  and 
the  court  would. not  inquire  by  what  means 
it  had  been  obtained.  It  was  also  held, 
that  misconduct,  on  the  part  of  the  defend- 
ant towards  the  other  party  indicted  was 
evidence,  as  part  of  the  res  geslce,  and  as 
tending  to  show  the  malice  of  the  defend- 
ant. The  court  also  held,  that  it  was  no 
bar  to  the  plaintiff's  recovering  that  a  rule 
for  a  criminal  information  had  been  ob- 
tained, but  not  proceeded  in.  Caddy  v. 
Barlow,  1  M.  &  R.  275. 

A  bill  of  exchange  was  addressed  to  Mr. 
J.  Spencer,  No.  3,  Sidmouth  Street,  and 
purported  to  be  accepted  by  him;  the 
plaintiff's  name  was  J.  Spence,  and  he 
resided  at  No.  3,  Sidmouth  Street,  but  the 
acceptance  was  not  his;  and  when  the  bill, 
was  at  maturity,  he  denied  the  acceptance, 
but  the  fact  of  denial  was  not  communica- 
ted to  the  defendant,  the  holder  of  the  bill. 
The  defendant  having  arrested  the  plaintiff, 
it  was  held,  in  an  action  for  malicious  ar- 
rest, that  there  was  no  evidence  of  malice, 
and  the  plaintiff  was  nonsuited.  Spence 
v.  Jacob,  1  M.  &  M.  180. 


MALICIOUS  PROSECUTION. 


75 


ecution,  to  show  that  it  was  groundless  ;  it  is  insufficient  to  prove  a 
mere  acquittal,  or  eveD  to  prove  an]  »n  the  part 

of  the  defendant  to  make  good  his  charge,  for,  a  red  io 

ise  of  Pure  tfv.  H  cna  uura  (e),  the  prosecution  may  have 
been  commenced  and  abandoned  from  the  purest  and  most  laudable 
motives. 

Thus  it  is  not  enough  to  -how,  that  on  an  indictment  of  the  plain- 
tiff by  the  defendant  for  perjury,  the  former  was  acquitted  upon  the 
trial,  on  failure  of  the  prosecutor's  appearance  when  called  (d) ; 
even  although  the  facts  lay  within  the  defendant's  know- 

i,  who,  had  there  been  *the  least  foundation  for  the    [    *7G   ] 
prosecution  might  have  proved  it  (e). 

Or  to  prove  that  the  bill  was  thrown  out  by  the  grand  jury 
or  (/)  that  the  defendant,  alter  'charging  the  plaintiff  on    [   *77    ] 
oath  with  an  assault,  omitted  to  prefer  an  indictment  (5-). 

Where  the  prosecutor  has  abandoned  the  prosecution  without 
giving  any  evidence,  and  it  is  proved  that  the  defendant  was  actuat- 
ed by  malicious  motives  in  preferring  the  bill,  although  some  evi- 
dence must  be  given  of  the  want  of  probable  cause,  slight  evidence 
will  be  sufficient  (A)- 


(c)  Pur  cell  v.  Mucnamara,  9  Ea9t, 
361.  Sykes  v.  Dunbar,  cited  9  East,  363, 
in  the  note  where  Ld.  Kenyon  ruled,  that 
it  was  not  sufficient  for  the  plaintiff  to 
show  his  acquittal,  without  going  farther 
and  giving  evidence  of  malice  in  the  de- 
fendant. 

(d)  Ibid. 

(e)  The  circumstance,  that  in  the  par- 
ticular case  the  facts  are  peculiarly  within 
the  knowledge  of  the  prosecutor,  and  the 
proof  of  them  within  his  reach,  would 
clearly  lie  an  insufficient  reason  for  depart- 
ing from  the  general  rule,  which  seems  to 
be  founded  partly  on  the  difficulty  an  ler 
which  a  defendant  must  often  labor,  in 
proving  by  other  witnesses  the  cause  which 
he  had  for  instituting  the  prosecution.  In 
Butler's  Nisi  Prius,  14,  it  is  laid  down, 
that  where  the  facts  are  in  the  knowledge 
of  the  defendant  himself,  he  must  show  a 
probable  cause,  though  the  indictment  has 
been  found  by  a  grand  jury,  or  the  plaintiff 
shall  recover,  without  proof  of  express 
malice;  for  this  position,  the  case  of  Par- 

38* 


roll  v.  Fishwick,  Loud.  Sitt.  after  Trin.  T. 
1772,  is  referred  to;  but  from  the  note  of 
this  case,  given  9  East,  362,  it  appears 
that  where  a  defendant  had  been  acquitted 
by  verdict,  Ld.  Mansfield,  in  summing  up, 
Baid,  "  That  it  was  not  necessary  to  prove 
express  malice;  for  if  it  appeared  that 
there  was  no  probable  cause,  that  was  suf- 
ficient to  prove  implied  malice,  which  was 
all  that  was  necessary  to  be  proved  to  sup- 
port this  action.  For  in  that  case  all  the 
facts  lay  within  the  defendant's  own  know- 
ledge; and  if  there  were  the  least  founda- 
tion for  the  prosecution,  it  was  in  his 
power,  and  incumbent  on  him  to  prove  it." 
Vn  lit  for  the  plaintiff,  d  images  £50.  It 
is  observed  by  Mr.  Mast,  in  the  note  refer- 
iv  1  to,  that  it  was  perfectly  consistent  with 
the  summing  up,  that  the  plaintiff  had 
given  prima  facie  evHence  to  negative  any 

(  f  )    Ihjne  v.  Moore,  Marsh,  12, 
(f)     Wallace  v.  Alpine,  '2  Camp.  201 
(A)  l\r  Le  Blano,  Incledon  v.  Berry,  1 
Camp.  '203,  in  the  note. 


77  CIVIL  REMEDY— EVIDENCE. 

In  an  action  against  a  magistrate  for  a  malicious  conviction,  the 
question  is  not  whether  there  was  probable  cause  in  fact  for  convict- 
ing, but  whether  he  had  any  probable  cause  for  convicting,  and  for 
this  purpose,  what  passed  before  him  upon  the  hearing  is  not  only- 
proper,  but  essential  evidence  with  a  view  to  the  question  of  ma- 
lice (i). 

The  proof  of  malice  in  this  action  (as  has  already  been  observed), 
usually  results-  from  the  want  of  probable  cause,  which  when  once 
established  affords  the  strongest  presumption  of  malice  (j  ).  Evi- 
dence as  to  the  conduct  of  the  defendant  in  the  course  of  the  trans- 
action, his  declarations  on  the  subject,  and  any  forwardness  and 

activity  in  exposing  the  plaintiff  by  a  publication  of  the 
[    *78    ]    *proceedings,  is  properly  adduced  to  prove  malice  (k). 

It  seems  also,  that  the  plaintiff  may  give  in  evidence  the 
proof  adduced  by  defendant  on  the  trial  of  the  charge  (/).  So  he 
may  give  in  evidence  publications  by  the  defendant  on  the  subject 
of  the  charge  (111). 

Where  the  defendant,  a  bank  inspector,  had  procured  the  plaintiff, 
a  tradesman  to  be  taken  into  custody  on  a  charge  of  having  in  his 
possession  a  forged  bank  note,  without  legal  excuse,  because  he  had 
refused,  after  paying  the  amount  to  the  person  to  whom  he  had  paid 
it  away,  to  deliver  it  up  to  the  inspector,  Ld.  Ellenborough  held 
that  the  pressing  a  commitment,  under  such  circumstances,  was  such 

cr asset  ignorantia  that  it  amounted  to  malice  (w). 
[    *79    ]        *The  defendant  may  give  in  evidence  any  facts  which 

show  that  he  had  -probable  cause  for  prosecuting,  and 
that  he  acted  bona  fide  upon  that  ground  of  suspicion.  It  is  no 
answer  to  the  action  that  the  defendant  acted  upon  the  opinion  of 

(i)  Bur  ley  v.  Bethune,  5  Taunt.  580.  it  in  the  usual    course   to  B.     The  note 
(  j  )  See  5  Taunt.  583.  being  stopped  at  the  bank,  was  stamped  as 
(k)  Str.  691.  a  forgery,   and   brought  by  an  inspector 
(I)  B.  N.  P.  13,  14.  to   the    plaintiff.     The    plaintiff  paid    the 
(m)   Chambers   v.  Robinson,  Str.  691.  amount  to  B.   and  refused  to  give  it  up  to 
where  the  plaintiff  gave  in  evidence  an  ad-  the  inspector,  insisting  on  his  right  to  re- 
vertisement   published   by   the   defendant,  tain  it.  The  inspector,  without  any  ground 
pending  the  prosecution  of  an  indictment  for  suspicion,  charged  the   plaintiff  with 
for  perjury,  though    an    information   had  feloniously  having  the  note  in  his   posses- 
been   granted;    but   the   chief  justice    in-  sion,  without  lawful  excuse.     The  case  was 
formed  the  jury  that  they  were  not  to  con-  very  pertinaciously  pressed  on  the  part  of 
sider  it  in  damages,  but  only  as  a  circum-  the  defendant,  although  Ld.  Ellenborough 
Btance  of  malice.  had,  early  in  the  cause,  expressed  a  strong 
(n)  Brookes  v.  Warwick,   2   Starkie's  opinion  on   the   subject,  and  left  it  to  the 
C.  389.     The  plaintiff  had  taken  the  note  jury  upon  the  ground  of  malice.     The  jury 
in  the  usual  course  of  business,  and  paid  found  for  the  plaintiff,  damages  £50. 


MALICIOUS  PROSECUTION.  79 

counsel,  if  the  statement  of  facts  upon  which  the  opinion  was  found- 
ed was  incorrect,  or  the  opinion  itself  unwarranted  (o). 

If  it  appear  that  the  jury,  upon  the  trial  of  the  plaintiff,  cnter- 
tained  doubts  upon  the  evidence,  and  deliberated  as  to  his  guilt  after 
the  case  was  concluded,  the  fact  is,  it  Beems,  evidence  of  a  probable 
cause  (/;). 

*It  is  obviously  of  importance   to  prove  that  a  felony    |     *80 
has  been  committed  (7),  and  to  be  prepared  with  proof 
of  such  circumstance  as  tend  to  throw  suspicion  on  the  plaintiff  (r). 
— This,  however,  would  probably  be  deemed  to  be  insufficient  in 
case  of  express  proof  that  the  defendant  knew  that  the  prosecution 
was  without  foundation. 

In  the  case  of  Johnson  v.  Browning  (.v),  where  it  appeared  that 
no  one  was  present  at  the  time  of  the  supposed  robbery  but  the 
wife  of  the  defendant  in  the  action,  Ld.  Holt  admitted  evidence  of 
what  she  swore  at  the  trial  of  the  indictment ;  but  it  is  obvious  that 
this  was  done  under  the  impression  that  it  was  incumbent  on  the 
defendant  to  establish  the  fact  of  probable  cause,  although  no  evi 
dence  were  given  to  establish  the  negative. 

*Where  the  plaintiff  has  been  arrested  on  a  charge  of        *81 
larceny,  it  has  been  doubted  whether  the  defendant,  after 
having  given  some  evidence  of  probable  cause,  can  give  evidence  to 
prove  that  the  plaintiff  was  a  man  of  bad  character  (7)  ;  but  it  seems 

(0)   Hewlett  v.  Crulchley,  5  Taunt.  277.  committed.     See  Samuel  v.  Payne,  Dougl. 

Supra,  vol.  I.  p.  281,  note.  345.     Ledwith  v.  Catchpole,  Cald.  291. 

(p)  In  Smith  v.  MacdonaU,  3  Esp.  C.  vr)  See  Knight  v.  Germain,  Cro.  Eliz. 
7.  Ld.  Kenyon  held,  that  if  the  jury  paused  184.  Pain  v.  Rochester,  Cro.  Eliz.  871. 
before  they  acquitted  the  plaintiff  upon  his  (s)  G  Mod.  "JIG.  In  B.  N.  P.  14,  citing 
trial  for  the  offence,  he  should  hold  that  Cobb  v.  Carr,  it  is  said,  that  the  defend- 
there  was  probable  cause  for  the  prosecu-  ant's  evidence  of  what  he  swore  upon  the 
tion.  It  does  not  appear,  whether  in  that  trial  of  the  indictment  is  evidence;  this*, 
case  the  evidence  rested  upon  the  testimony  however,  does  not  seem  to  be  warranted, 
of  the  prosecutor,  the  defendant  in  the  ac-  for  if  the  principle  of  necessity,  operated 
tion.  It  is  also  to  be  observed,  that  there  in  such  a  case,  the  effect  would  be  to  admit 
was  no  evidence  to  negative  probable  cause,  the  testimony  of  the  defendant  himself,  by 
a  circumstance  in  itself  sufficient  to  war-  which  means  the  plaintiff  would  have  the 
rant  a  nonsuit.  See  also,  Lilnal  v.  Small-  benefit  of  a  cross-examination, 
man,  Selw.  'J4G.  Chiding  v.  Crowle,  13.  (/)  In  the  case  of  Rodriguez  v.  Tad- 
N.  P.  14.  mire,  2  Esp.   C.   7'J1,  Lord  Kenyon  admit- 

(q)  In  Johnson   v.    Browning,  G    Mod.  ted    general   evidence   to    that    effect.     In 

21G,  Ld.    Holt   seems   to   have   considered  J\~ewsnm  v.  Carr,  2  Starkie's  C.    I 

this  proof  to  be  essential   to  the  defence;  Wood,  D.  where  a  witness  was  asked  whe- 

but   it  seems  to  be  a  good  defence  to  prove  ther   the  plaintiff 's   house  had    not   been 

reasonable  grounds  for  suspecting  the  guilt  searched  on  former  occasions,  and  whether 

of  the  plaintiff,   although   no    felony  was  he  was  not  a  man  of  suspicious  character, 


81  CIVIL  REMEDY— EVIDENCE. 

that  although  such  evidence  affords  no  presumption  of  probable 
cause  in  the  particular  instance  (?/)?  yet  that  it  is  matter  admissible 
in  mitigation  of  damages. 

3dly.  The  damage  sustained. — The  plaintiff  may  prove  in  aggra- 
vation of  damages  the  length  of  imprisonment,  his  expenses,  situa- 
tion and  circumstances.  The  peril  and  jeopardy  in  which  a  man's 
life  and  liberty  arc  placed  by  a  malicious  prosecution,  or  the  pre- 
judice to  his  fame  and  reputation,  constitute  a  sufficient  ground  of 
action  (.-r)  ;  so  although  neither  his  fame  nor  liberty  be 

*82  "|  affected,  if  he  has  been  put  to  needless  expense  *to  defend 
himself  (#).  In  the  assessment  of  damages,  the  costs 
incurred  by  the  plaintiff  are  to  be  estimated  as  between  attorney  and 
client  (z). 

If  a  man  be  falsely  and  maliciously  indicted  of  a  crime  which  is 
a  scandal  to  him,  and  hurts  his  fame,  an  action  lies,  although  the  in- 
dictment be  insufficient,  or  an  ignoramus  be  found  (a)  ;  for  although 
no  expense  may  have  been  incurred,  the  mischief  of  the  slander  has 
been  effected  (6). 

A  plaintiff  cannot  upon  the  trial  object  to  the  insufficiency  of  a 
pica  of  justification  in  point  of  law  (c). 

Upon  the  execution  of  a  writ  of  inquiry,  where  the  defendant  in  an 
action  for  slander  has  all  owed  judgment  to  go  by  default,  it  is  notin- 
cumbent  on  the  plaintiff  to  give  any  evidence.  The  jury, in  the  ab- 
sence of  evidence,  are  not  confined  to  nominal  damages  (d). 
[  *83  ]  A  member  of  parliament  may  be  called  upon  *to  state 
(e)  whether  another  member  took  part  in  a  particular  dis- 
cussion, but  cannot  be  examined  as  to  what  was  said  in  the  course  of 
the  debate. 

In  Curry  v.  Walter  (/  ),  a  barrister  subpoenaed,  to  prove  that  he 
had  made  a  motion  in  the  court  of  King's  Bench  for  a  criminal  infor- 

Wood,  13.  overruled   the   question,  observ-  {z)   Sandback  v.  Thomas,   1  Starkie's 

ing,  that   in   actions   of  slander   such  evi-  G.  306.     But   see    Sinclair  v.  Eldred,  4 

dence  would  be   admissible  to  mitigate  the  Taunt.  7. 

damages,  but  that  in  the  present  case,  it  (a)   Savil   v.    Roberts,   B.    N.    P.    13  ; 

would  afford  no  evidence  of  probable  cause.  Chambers  v.  Robinson,  Stra.  691. 

(u)  Ibid.  (b)  Ibid. 

(z)  Savil  v.  Roberts,  B.  N.  P.  13.  (c)  Edmonds    v.    Walter,  3   Starkie's 

(i/)  B.   N.  P.  14.     This   was   formerly  C.  7. 

doubted,  ibid.     But  it  has   been  decided,  (d)   Tripp  v.  Thomas,  3  B.  &  C.  427. 

that  such  an  action  lies  by  the  husband  for  (e)  5  Esp.  R.  136. 

the  expense  of  defending  his  wife,  B.  N.  P.  (/)  1  Esp.  456. 
13.      Jones  v.   Gwynn,  10  Mod.   214;    1 
Salk.  15;  Gilb.  185. 


MALICIOUS  PROSECUTION.  83 

mation  against  the  plaintiff,  for  publishing  which  the  latter  brought 
his  action.     Upon  the  trial,  Eyre,  0.  J.  was  of  opinion  that  it  was 

improper  to  call  a  barrister  as  a  witness  to  prove  Mich  a  circum- 
stance, but  that  the  party  ought  to  prove  it  by  other  means  ;  that  it 
was  at  the  option  of  the  counsel  to  give  or  withhold  his  testimony. 


CHAPTER  II. 


Evidence  for  the  Dependant. 

•  *g4  j  *jT  jias  ajreac]y  }3een  seen  0f  what  means  of  defence  the 
defendant  may  avail  himself  under  the  plea  of  the  general 
issue  (a). 

Under  the  plea  it  is  incumbent  on  the  plaintiff  to  establish  his 
cause  of  action  as  alleged  in  the  declaration  ;  but  where  he  has  once 
established  a  prima  facie  case  by  proof  of  the  speaking  or  publish- 
ing matter  which,  unexplained,  is  injurious  and  actionable,  it  lies  on 
the  defendant  to  explain  it  if  he  can,  and  to  show  by  reference  to 
circumstances,  that  the  supposed  slander  or  libel  was  not  in  fact  used 
in  an  injurious  and  actionable  sense  (6),  or  that  it  was 
\  *85  ]  used  under  *circumstances  which  afforded  either  an  abso- 
lute or  qualified  justification  (c). 

In  the  case  of  Pen/old  v.  Westcote  (cT),  it  was  proved  that  the 
defendant  said  of  the  plaintiff,  "  Why  do  not  you  come  out,  you 
blackguard  rascal  scoundrel  ?  Penfold,you  area  thief."  The  wit- 
ness who  proved  the  words  was  not  asked  whether  by  the  word  thief 
he  understood  that  the  defendant  meant  to  charge  the  plaintiff  with 
felony. 

Chambre,  J.  in  his  direction  to  the  jury,  said  that  it  lay  on  the 
defendant  to  show  that  felony  was  not  imputed  by  the  word  thief. 
And  after  a  verdict  for  the  plaintiff,  a  new  trial  was  refused. 

(a)  Supra,  vol.  I.  p.  453.  was  entirely  a  question  for  the  jury  although 

(b)  Cro.  J.  114.  B.  N.  P.  5.  Vide  su-  evidence  had  been  given  of  other  language 
pra,  vol.  I.  c.  8.  &  1 3.  In  the  case  of  TVil-  of  reprobation  used  at  the  same  time,  and 
son  v.  Stephenson,  2  Price  282,  the  jury  in  fact  the  plaintiff  had  been  the  innocent 
found  that  words  charging  the  plaintiff  cause  of  his  brother's  death  by  the  dis- 
with  being  a  murderer,  and  liaving  mur-  charge  of  a  small  cannon.  But  see  the  case 
dered  his  brother,  had  been  spoken  by  the  of  Bromage  v.  Prosser,  supra,  vol.  1.  p. 
defendant,  but  had  not  been  spoken   mali-  221. 

ciously,  and  a  verdict  having  been  entered         (c)  Supra,  vol.  I.  p.  229. 

on  this  finding  for  the  defendant,  the  court         (d )  2   N.   R.  335.     Christie  .v.  Cowell, 

refused  a  new  trial,  being  of  opinion  that  it    Peake's  C.  4.     Sel.  N.  P.  1250. 


EVIDENCE  IN  MITIGATION. 


s.-, 


The  defendant,  according  to  the  ordinary  rule,  is  entitled  to  have 
the  whole  of  the  alleged  libel  read  (c),  or  the  whole  of  the  conver- 
sation in  which  the  slander  complained  of  was  spoken,  detailed  in 
evidence.     For  he  is  entitled   to  show  by  the  whole  con- 
text, that  the  alleged  libel  01  words    were  not   in   fact    [ 
used  in  an  actionable   sense.     And  where  a  letter  of  the 
defendant's  was  read,  which  referred  to  an  account  of  the  transac- 
tion related  in  a  newspaper,  that   newspaper,  it  was  held,  was   evi- 
dence (/). 

Where  it  plainly  appears  from  the  context,  that  the  words  were 
not  used  in  a  felonious  sense,  the  plaintiff  will  be  oonsnited  upon 
his  own  showing  (§•). 

Where  the  defendant  shows  facts  in  defence  as  an  answer  to  the 
action  in  the  absence  of  express  malice,  it  is  still  a  question  for  the 
court  whether  in  point  of  law  the  slander  docs  not  manifestly  ex- 
ceed the  limits  of  communication  which  such  an  occasion  would  jus- 
tify :  when  that  is  the  case,  the  question  of  express  malice  is  not 
to  be  left  to  the  jury  (/*)  [1]. 

*The   defendant  may   also   show   in   defence,   that   the  7 

plaintiff  himself  procured  the  act  to  be  done  of  which  ho 
complains  (i). 

The  plaintiff  cannot  recover  if  the  vocation  in  which  he  is  libelled 
be  an  illegal  one  (/c). 


(e)  Cooke  v.  Hughes,  1  R.  &  M.  112. 

(/■)   Weaver  v.  Loyd,  2   C.  &  P.  296. 
Cor.  Garrow,  B. 

(</)  Thompson  v.    Bernard,  1    Camp,  C 
48.     Sec  note  fr.  p.  SO.  vol.  I. 

(h)  Godson  v.  Flower,  2  13.  &  D.  7.  The 
defendant  wrote  a  letter,  blaming  the  par- 
ty addressed  for  employing  the  plaintiff 
(an  attorney),  adding,  "  If  you  will  he 
misled  by  an  attorney  who  only  considers 
his  own  interest,  you  will  have  to  repent 
it,  &c."  It  was  held  that  the  jury  wire 
properly  directed  to  consider  whether  the 
expression  were  meant  of  the  ■ 
generator  of  the  plaintiff  in  particular,  ami 
that  it  was  not  necessary  to  leave  it  to  them 
whether  it  was  buna  file  or  malicious  pub- 
lication ;  and  Richardson.  J.  observed,  "  If 
a  man  giving  advice  call   another  a  thief, 


surely  it  is  not  necessary  to  leave  it  to  the 
jury  whether  this  is  a  confidential  commu- 
nication." And  see  Brown  v.  Broom,  2 
Starkie's  C.  297. 

(i)  King  v.  Waring,  5  Esq.  C.  13. 
Where  the  witness  in  an  action  for  a  libel 
stated,  that  having  heard  that  the  defend- 
ant had  a  copy  of  the  print  ( ill  gi  d  to  be 
libellous),  he  went  to  his  house  and  request- 
it,  on  which  the  defendant  pro- 
duced it,  and  pointed  out  the  figure  of  the 
plaintiff  and  the  other  persons  ridiculed, 
ugh  held,  that  the  publication 
yy  is  insufficient  Smith  v.  Wood,  8  Camp. 
Tunica  quart,  for  there  fl  IS  DO  evi- 
dence to  show  that  the  plaintiff  was  iu  priv- 
ity with  the  win 

(A)  Burst  v.  Bell,  1  Bingh.  1,  where 
the  plaintiff  complained  of  having  been  li- 


[1]  This  doctrine  is  doubted.     See  note  [1],  p-  35G,  infra. 


87  CIVIL  REMEDY. 

It  is  perfectly  well  settled,  that  the  defendant  cannot,  under  the 
plea  of  the  general  issue,  in  an  ordinary  action  for  slander,  go  into 
evidence  of  the  truth  of  the  imputation,- even  for  the  purpose  of 

mitigating  the  damages  (/)  [1]. 
[  *88  ]        *But  doubts  have  arisen  upon  the  question  to  what  ex- 
tent the  defendant  is  at  liberty  to  impeach  the  *plaintiff 's 
character,  by  affecting-  him  with  a  suspicion  of  the  truth  of  the  al- 
leged calumny  (ni)  [2] . 

The  main  question  seems  to  have  been,  whether  the  defendant  be 
at  liberty  to  do  more  than  to  impeach  the  plaintiff's  character  by 
general  evidence,  or  whether  he  be  also  entitled  to  go  into  evidence 
of  particular  facts,  tending  to  show  that  the  plaintiff  had  been  guilty 
of  the  particular  act  imputed  to  him. 

General  evidence  to  show  that  the  plaintiff,  previously  to  the  al- 
leged slander,  labored  under  a  general  suspicion  of  having  been 
guilty  of  similar  practices,  seems  in  principle  to  be  admissible,  as 
immediately  and  necessarily  connected  with  the  question  of  dam- 
ages. He  complains  of  loss  of  reputation,  and  that  he  has  been  de- 
prived of  his  character  by  the  act  of  the  defendant.  Is  not  the  de- 
fendant, then,  to  be  permitted  to  show  that  the  plaintiff's  character 
was  previously  tainted  with  suspicion,  or  that  he  had  in  fact  little 
character  or  reputation  to  lose  ?  To  deny  this,  would  be  to  decide 
that  a  man  of  the  worst  of  character  was  entitled  to  the  same  mea- 
sure of  damages  with  one  of  unsullied  and  unblemished  reputation  : 
a  reputed  thief  would  be  placed  on  the  same  footing 
[  *89  '  with  the  most  honorable  merchant — *a  virtuous  woman, 
with  the  most  abandoned  prostitute. 

To  enable  the  jury  to  estimate  the  probable  quantum  of  injury 
sustained,  a  knowledge  of  the  party's  previous  character  is  not  only 
material,  but  seems  to  be  absolutely  essential  (n). 

belled  in   his  vocation   as  an   exhibitor  of  (m)  See   Mullettv.   Hulton,  4  Esp.  C. 

sparring   matches  ;  nor  does  an   action  lie  248.     The  Earl  of  Leicester  v.  Waller,  2 

for  a  libel  against  a  party  touching  his  con-  Camp.  C.  251.     1  M.   &  S.  284,  and   infra 

duct  in  any  illegal  transaction.      Yrissari  89,  90,  &c. 

v.  'Clement,   3  Bing.    432.     Secus   where  (?;)  Lord  Ellenborough^C.  J.  in  the  case 

the  matter  is   independent   of  the  illegal     0f Moore,  1  M.  and  S.  284,  laid  down 

transactions,  though  arising  out  of  it.  both  the  rule  itself,   and  the  principle  on 

{I)  See  the  resolution  of  the   judges  in  which   it  is  founded,  in  the  most  clear  and 

Underwood  v.  Parkes,  Str.  1200.  Mulldt  explicit  manner  ;  he  observes,    "Certainly 

v.  Hxdlon,  4  Esp.  C.  248.  Infra.  98.  a  person  of  disparaged  fame  is  not  entitled 

[1]  See  vol.  I.  p.  233,  note  [1]. 
[2]  See  note  [1]  page  97,  infra. 


KVIDKNCK   IN    MITIGATION. 


S'J 


*The  question  whether  the  defendant  should  be  permit-  [  *90  ] 
ted  to  adduce  evidence  of  particular  facts,  'tending  to 
eihew  that  the  plaintiff  was  really  guilty  of  the  charge    [  "91  ] 


to  the  same  measure  of  damages  with  one 
whose  oharactei  is  unblemished,  and  it  is 
competent  to  show  that  by  evidence."  And 
G  ind  Bayley,  Js.  agreed,  t li  it.  snob 
evidence  was  admissible  in  mitigation  of 
damages. 

In  the  case  of  the  Earl  of  Leicester  v. 
Walter,  2  Camp.  C.  251,  an  action  was 
brought  for  a  libel  published  in  the  Morn- 
ing Herald,  imputing  to  the  plaintiff  the 
offence  for  which  Lord  Audley  suffered  in 
the  reign  of  Ch.  I.  The  declaration  con- 
tains! the  usual  exculpatory  averments, 
and  stated  that  the  plaintiff  had  lost  the 
society  of  many  worthy  subjects  in  conse- 
quence of  the  publication.  The  defendant 
pleaded  not  guilty. 

Upon  the  trial  before  Sir  J.  Mansfield, 
C.  J.  evidence  was  offered  in  mitigation  of 
damages,  that  at  the  time  of  the  publica- 
tion the  plaintiff  was  generally  suspected  to 
have  been  guilty  of  the  charge  imputed, 
and  that  in  consequence  of  this  general  sus- 
picion his  acquaintance  had  deserted  him. 

This  evidence  was  objected  to.  It  was 
contended  that  it  would  be  in  vain  to  bring 
an  action  if  Buch  evidence  were  permitted  ; 
thai  a  plaintiff  could  not  come  prepared  to 
defend  I  f    his    life.       That  there 

was  nothing  on  the  record  to  put  the  char- 
acter in  issue  ;  and  that  to  admit  such  evi- 
dence would  only  be  giving  the  defendant 
an  opportunity  of  continuing  and  aggravat- 
ing the  original  libel. 

Sir  J.  Mansfield,  C.  J.  admitted  the  evi- 
dence, observing,  that  he  could  never  an- 
swer to  his  own  satisfaction,  the  arguments 
:■  the  plaintiff.  That  since  it  had 
been  held  that  any  tiring  short  of  proving 
the  charge  imputed  in  the  libel  was  evidence 
in  mitigation,  he  iliil  not  know  how  to  reject 
the  witnesses.  Besides  that,  the  dec]  ira- 
don  stated  that  the  plaintiff  had  always 
preserved  a  good  character  in  society,  from 
which  he  had  been  driven  by  the  insinua- 
tions in  the  libel.      That  the  question  for 

Vol.  II.  39 


the  jury  was,  whether  he  nlaintiff  had  ac- 
tually .suffered  this  grievance  or  not,  and 
therefore  that  evidence  to  show  t  .•  his 
character  was  in  as  hid  a  situation  before, 
as  after  the  libel,  must  be  admitted. 

The  learne  1  judge  in  summing  up,  direc- 
ted the  jury  to  consider,  in  assessing  the 
damages,  whether  the  reports  which  bad 
been  proved  were  sufficient  to  show  that 
the  plaintiff  could  receive  little  injury  ;  and 
that,  in  this  point  of  view,  it  did  not  mat- 
ter whether  the  reports  weie  well  or  ill- 
founded,  provided  they  got  into  many  men's 
mouths. 

In  the  case  of  William*  t.  Cullender, 
Holt's  C.  307,  Lord  Ldlenborough  is  report- 
ed to  have  said,  that  "  there  was  no  justifi- 
cation on  the  record,  the  defendant  might 
give  in  evidence  somewhat  of  the  real  char- 
acter of  the  plaintiff,  and  Bhow  that  it  was 
not  unblemished  and  entire."  And  see 
Holt's  Law  of  Libel,  270. 

In  the  case  of  Ellershaw  v.  Robinson, 
and  ux.  Sum.  Sp.  Ass.  1824,  which  was 
an  action  for  words  imputing  to  the  plain- 
tiff, a  widow,  an  adulterous  intercourse 
with  Robinson,  in  consequence  of  which 
special  damage  had  been  sustained.  BTol- 
royd,  J.  held,  that  it  would  be  competent 
to  the  defendants  to  go  into  general  evidence 
to  impeach  the  plaint  ill's  character  for 
chastity.  See  also  Fumer  v.  Merit,  cited 
in  the  case  of  the  Earl  of  Leicester  v. 
Walter,  2  Camp.  251. 

In  the  case  of  Jones  v.  Stevens,  II  Price 
286,  which  was  an  action  for  a  libel  on  the 
plaintiff  in  his  character  of  attorney,  and 
containing   general  reflections  on  the  pi  lin- 

tiff  V.  professional  c  in  luol  and  n  spectabili- 

ty, — the  defendant  pleaded  the  general  is- 
sue, and  several  pleas  of  justification,  some 
of  which  alleged,  in  very  genera]  terms, 
that  the  plaintiff  hid  conducted  himself  in 
an  unprofessional  and  disreputable  manner. 
On  the  trial,  the  defendant  proposed  to 
prove  by  witnesses  in  support  of  the  pleas 


91 


CIVIL  REMEDY. 


[•92] 

[  *93  J 


imputed  to  him,  stands  on  a  *very  different  foundation. 
To  allow  this,  generally,  would  be  to  overturn  the  rule 
laid  down,  *in  the  case  of  Underwood  v.  Parke s,  by    all 


of  justification,  and  in  contradiction  of  the 
general  averment  in'  the  declaration  that 
the  plaintiff  had  carried  on  the  profession 
and  business  of  an  attorney  with  great 
credit  and  reputation,  that  the  plaintiff 
was  of  general  bad  character  and  repute 
in  his  business  of  an  attorney  ;  but  the 
evidence  was  rejected  by  the  Chief  Baron 
as  inadmissible  :  and  on  motion,  after- 
wards, for  a  new  trial,  the  court  of  Ex- 
chequer was  of  the  same  opinion,  and  held 
with  many  forcible  observations,  that  such 
evidence  was  not  admissible,  either  in  miti- 
gation of  damages,  or  in  support  of  any  of 
the  allegations  contained  in  the  pleas  of 
Justification.  Wood,  B.  observed,  "  I  have 
ever  understood  that  general  good  character 
is  always  presumed  in  law,  unless  by  evi- 
dence of  particular  acts,  fairly  and  specifi- 
cally put  in  issue,  that  presumption  is 
negatived.  Some  cases  have  been  mention- 
ed wherein  it  should  seem  that  such  evi- 
dence has  been  received  at  Nisi  Prius  ;  I 
will  not  attempt  to  distinguish  the  present 
from  those — I  strongly  protest  against  any 
such  mischievous  doctrine  altogether,  and 
deny  that  it  has  any  legal  foundation. 

In  the  above  case,  that  of  Wailhman  v. 
Weaver  was  cited,  to  show  the  opinion  of 
Abbott,  L.  C.  J.,  that  in  an  action  for  a  li- 
bel on  a  tradesman,  insinuating  that  he  had 
been  guilty  of  receiving  stolen  goods, 
evidence  was  inadmissible  to  show  that 
the  libel  was  no  more  than  a  repeti- 
tion of  rumors  which  were  prevalent  at  the 
time,  of  the  facts  imputed  to  the  plaintiff  ; 
and  according  to  the  report  of  the  case  in 
11  Price  '257,  n.  his  lordship  was  not  sat- 
isfied that  he  ought  to  receive  the  evidence, 
which  was  afterwards  withdrawn.  But  ac- 
cording to  the  report  of  the-same  case,  1  D. 
&  R.  10,  the  defendant's  counsel  offered  in 
evidence  facts  short  of  a  complete  justifi- 
cation ;  and  all  that  his  lordship  decided 
was,  that  facts  were  not  admissible  in  evi- 
dence ;  and  his  lordship  distinguished   the 


case  from  that  of  the  Earl  of  Leices- 
ter v.  Waller,  on  the  very  distinction  be- 
tween evidence  of  rumors  and  evidence  of 
facts.  He  observed,  "  The  case  of  the  Earl 
of  Leicester  v.  Walter  is  very  different 
from  the  present.  There,  evidence  of  ru- 
mors was  admitted,  to  show  that  the  plain- 
tiff, having  previously  lost  his  character, 
had  sustained  no  injury  ;  here  it  is  pro- 
posed to  give  not  rumors,  but  facts,  in 
evidence,  and  there  is  a  vast  distinction 
between  rumors  and  facts.  I  think  the 
rule  is  not  so  laid  down  in  any  of  the  ca- 
ses which  have  been  decided  on  this  sub- 
ject, as  to  preclude  the  exercise  of  my  own 
judgment  ;  and  I  am  decidedly  against  the 
reception  of  the  evidence  proposed  to  be 
adduced.  I  own  that  I  have  always  thought 
the  rule  to  be,  that  under  the  general  issue 
facts  cannot  be  given  in  evidence,  uuless 
they  are  pleaded  as  matter  of  justification, 
and  I  have  not  been  satisfied  with  any  of 
the  cases  which  have  laid  down  a  different 
position."  Notwithstanding  the  respect 
which  all  must  entertain  who  have  had  op- 
portunities of  judging  of  the  profound 
learning  and  clear  apprehension  of  the  ven- 
erable judge  (Wood,  B.)  who,  in  the  case 
of  Jones  v.  Stevens,  expressed  so  strong 
and  decisive  an  opinion  on  the  inadmissi- 
bility of  general  evidence  of  previous  bad 
character,  in  actions  for  slander,  it  may  be 
permitted  to  remark,  that  though  the  law 
presumes  in  favor  of  character,  it  is  but  a 
presumption  capable  of  proof  to  the  contra- 
ry, and  that  in  several  instances  the  law 
does  not  permit  character  to  be  impeached 
by  evidence  of  particular  facts,  but  by  gen- 
eral evidence  only  ;  as  where  the  general 
credibility  of  a  witness  is  impeached,  or 
the  character  of  a  prosecutrix  on  a  charge 
of  rape.  The  principle  on  which  such  gen- 
eral evidence  is  admitted,  whilst  evidence 
of  particular  facts  is  excluded,  has  been 
frequently  recognized  :  it  is  this, — that  the 
party  may  be   pi  epared  with  general  evi- 


EVIDENCE  IX  MITIGATION. 


93 


the  judges— that  the  truth  of  the  imputation,  should  *not    [  *94  J 
be  given  in  evidence  under  the  general  issue,  even  is  mit- 
igation of  damages ;  for  if,  as  seems  *to  have  been   held    [  ".'".  ] 


dence  in  support  of  character,  though  he 
cannot  be  supposed  to  be  prepared  with  evi- 
dence to  justify  his  conduct  through  life. 

Tu  Snow  Jon  v.  Smith,  Devon.   Lent  As- 
sizes, 1811,  1  M.  &  S.  286,  note  (a),  in  an 
action  against    the    defendant    for   saying, 
"thit  he  had  heard  that  the  plaintiff  had 
been  guilty   of  unnatural   practices,"    to 
which  the  defendant  pleaded  a  justification 
alleging  instances,  Chambre,  J.  would  not 
permit  a  witness  to  be  asked  whether  such 
reports  as  the  defendant  had  stated  had  not 
gone  abroad,  and  held,  that  the   case  of  the 
Earl   of  Leicester  v.  Walter  did  not  ap- 
ply,  because  the  defendant   had   justified. 
Whether   the    evidence   in   this   case   was 
rightly  rejected,  or  not,  on  the  ground   al- 
leged in    the   report,  it   is  clear   that   the 
learned  judge  did  not  mean    to  rule  in  op- 
position to  the    Earl  of  Leicester  v.  Wal- 
ter.    It  might,  perhaps,  be  difficult  to  sus- 
tain the  distinction  on  the  ground  of  a  jus- 
tification pleaded.     The   reason    for  admit- 
ting such  evidence  is  to  show,  that  in  fact 
the  plaintiff  had    sustained   little  injury  as 
to  character,  and  so  to   reduce   the  dama- 
ges ;  and  that  is   a  re  ison   for   admitting 
such  evidence,  which  is  wholly  independent 
of  the  question   of  justification  ;  and    for 
that  purpose  such  evidence  may  be  admis- 
sible, though   wholly   inadmissible  as  evi- 
dence   to   prove   the  justification.      It  is, 
however,  to  be  observed,  that  there  maybe 
a  distinction  between  evidence  of  particular 
rumors,  such  as  was  rejected  in  the  case  of 
Snowilen  v.  Smith,  and  general   evidence, 
to  show  that  the  plaintiff's  character  had 
been  previously  tainted  and  reduced.     The 
plaintiff    complains    of  loss  of  character  ; 
he   question  is,  what   character  had  he  to 
lose?     If  he   had  but   little,  he  can    have 
lost  but   little  ;  and,  strictly  speaking,  the 
vidence  of  mere  rumors  is  not  directly  ap- 


plicable for  this  purpose,— such  rumors 
in  iv  hive  partially  prevailed,  but  not  have 
obtained  credit.  The  proper  question 
seem  to  be,  wli  it  me  the  plaintifl 
eral  character  for  honesty  or  humanity, 
according  to  the  nature  of  the  slander,  pre- 
vious to  the  alleged  injury. 

It  may  be  observed,  that  the  rule  which 
excludes  evidence  of  particular  facts,  which 
prove  or  tend  to  prove  the  truth  of  the  al- 
leged slander,  is  attended  in  practice  with 
this  inconvenience,  that  a  defendant,  for 
the  sake  of  being  admitted  to  give  evidence 
of  facts,  which  he  might  reasonably  ex- 
pect would,  if  disclosed,  greatly  reduce  the 
damages,  is  under  the  necessity  of  pleading 
a  justification  which  he  knows  he  cannot 
support.  If  A.  published  that  B.  had  com- 
mitted a  robbery,  and  the  fact  was  that  B. 
had  attempted  a  robbery,  which,  in  legal 
strictness,  was  not  consummated,  A.  in  an 
action  for  the  slander,  must  either  plead  a 
justification  which  he  knows  that  lie  cannot 
prove,  or  he  would  be  excluded  from  that 
evidence  which  ought  to  be  followed  by 
mere  nominal  damages  [1].  In  practice, 
no  great  inconvenience  is  occasioned;  in 
this,  as  in  many  other  instances,  a  skilfui 
pleader  will  resort  to  pleas  of  little  or  no 
use  as  to  the  issues  founded  upon  them,  but 
of  the  greatest  importance  with  a  view 
to  the  admission  of  evidence.  The  incon- 
gruity of  rejecting  evidence  as  to  the  quan- 
tum of  damages,  which  ought  materially  to 
govern  the  amount,  without  pleading  a 
false  plea,  might  be  avoided,  as  well  as  the 
inconvenience  which  would  result  from  per- 
mitting such  evidence  to  be  given  without 
noti  v,  by  admitting  it  Conditionally,  after 
due  notice  given  to  the  plaintiff  of  the  de- 
fendant's intention  to  prove  the  specific 
facts  in  mitigation  of  damages. 


[1]  Taking  into  view  the  whole  of  what  is  said  in    the   text  and  notes  of  this  chapter, 
on  the  subject  of  the  plaintiff's  character,  in  reference  to  the  question  of  damages,  it  is 


95  CIVIL  REMEDY. 

by  Eyre,  C.  J.  (mj,  the  defendant  might  in  mitigation  of  damages 
give  any  evidence  short  of  such  as  would  be  a  complete  defence  to 

(771)   Knobell  v.  Fuller,  infra,  9G. 

undeniable  that  the  courts  in  England  do  hold,  that  general  suspicions  and  common  re- 
ports of  the  guilt  of  the  accused  may  be  given  iu  evidence  in  mitigation  of  damages. 
Here,  again,  it  is  manifest  that  the  learned  author  is  not  well  content  with  the  doctrine 
he  feels  himself  bound  to  advance,  and  that  he  would  gladly  place  the  defence  upon  gen- 
eral evidence  of  the  bad  character  of  the  plaintiff,  as  when  the  character  of  a  witness  for 
veracity  is  impeached,  rather  than  upon  evidence  of  suspicion  and  reports;  but  such 
has  not  been,  nor  is  it  now  the  law,  as  held  in  England.  The  doctrine  there  rests  prin- 
cipally upon  the  cases  of  Leicester  v.  Waller,  2  Camp.   251; v.  Moor,  1  Maule 

&  Sel.  284,  and  Knobell  v.  Fuller,  infra  p.  96,  note  [/?].  It  was  adopted  in  Pennsyl- 
vania in  Williams  and  wife  v.  Mayer  and  wife,  1  Biuney  92  n;  in  Kentucky,  in 
Middleton  and  wife  v.  Calloway,  2  A.  K.  Marshall's  R.  372;  in  South  Carolina,  in 
Buford  v.  M'Luny,  1  Nott  &  M'Cord  268;  in  Connecticut,  in  Hyde  v.  Bailey,  3 
Conn.  R.  466,  and  Treat  v.  Browning,  4  Conn.  R.  414.  On  the  other  hand,  the  doc- 
trine of  the  English  courts  has  never  prevailed  in  Virginia,  Massachusetts  or  New 
York  :  thus  in  Virginia,  in  M' Alexander  v.  Harris,  6  Munf.  465,  evidence  showing 
a  probable  ground  of  suspicion  was  refused  to  be  received  in  mitigation  of  damages, 
although  the  English  cases  above  referred  to,  were  strongly  enforced  by  counsel.  la 
Massachusetts,  the  question  was  very  fully  considered  in  the  case  of  Wolcott  v.  Hall, 
6  Mass.  R.  51 4, -and  the  evidence  held  to  be  inadmissible.  That  case  came  before  the 
court  in  1810.  On  the  trial,  the  defendant  offered  to  prove  reports  current  in  the 
neighborhood,  that  the  plaintiff  was  guilty  of  the  crime  imputed  to  him.  C.  J.  Par- 
sons* in  pronouncing  judgment,  observed,  "  Evidence  as  to.  the  general  character,  of 
the  plaintiff,  he  may  at  all  times  encounter,  if  untrue  ;  and  if  his  character  be  gen- 
erally bad,  independent  of  the  slander  of  which  he  complains,  the  jury  may  consider 
it,  for  the  worth  of  a  man's  general  reputation  among  his  fellow-citizens  may  entitle 
him  to  large  damages  for  an  attempt  to  injure  it,  which  he  ought  not  to  obtain  if  his 
character  is  of  little  value  or  no  estimation  in  society.  But  evidence  of  the  plaintiff's 
general  character  was  not  offered  ;  but  only  an  attempt  to  blast  his  reputation  by  par- 
ticular reports  which  he  might  not  have  it  in  his  power  to  silence,  but  by  commencing 
this  prosecution  ;  and  if  such  reports  could  be  given  in  evidence,  the  subject  of  them, 
however  innocent,  instead  of  seeking  redress  from  the  laws,  had  better  sink  privately 
under  the  weight  of  unmerited  calumny,  lest  by  attempting  his  justification  he  should 
give  notoriety  to  slanders  which  had  before  been  circulated  only  in  whispers."  This 
doctrine  was  re-asserted  by  the  same  court,  in  Alderman  v.  French,  1  Pick.  1  ;  and 
again  in  Bodwell  v.  Swan  and  wife,  3  Pick.  376.  In  the  last  case,  Parker,  C.  J.  re- 
marked, "  It  appears  to  us  that  the  rejection  of  evidence  offered  by  the  defendant, 
tending  to  prove  that  the  words  spoken  and  "charges  made  were  true,  in  order  to  show 
that  the  wife  believed  what  she  said  to  be  true,  was  right.  It  was  so  settled  in  Alder- 
man v.  French,  and  upon  sound  principle.  In  truth,  such  evidence  would  answer  all 
the  purposes  of  the  defendant  without  exposing  him  to  the  just  consequences  of  at- 
tempting to  justify,  and  failing  in  the  attempt ;  and  this  further  mischief  would  follow  : 
that  the  notice  to  the  plaintiff  of  what  is  intended  to  be  proved  which  is  given  by  a  spe- 
cial plea  of  justification,  would  be  withholden,  so  that  the  plaintiff  would  be  taken  by 
surprise,  and  have  no  opportunity  to  disprove  the  facts. 

The  modern  refinements  in  the  law  of  slander  have   been  productive  of  more  mischie 
than  good.     The  defendants  in  such  cases  ought  to  be  ready  to  take  the  ground  openly, 


EVIDENCE  IX  MITIGATION.  95 

the  action  ;  how  would  it  be  possible  to  draw  the  line,  and  to  restrain 
the  evidence  of  facts  tending  to  throw  BuspicioD  on  the  plaintiff 

within  Mich  limits,  thai  it  should  not  produce  actual  conviction  on 
the  minds  of  the  jury  I  The  practice,  it  is  obvious,  would  he  attend- 
ed with  all  the  hardship  and  inconvenience  which  would  result  from 
admitting  a  complete  justification  under  the  general  issue  ;  for  trie 
plaintiff  would  be  equally  liable  to  surprise,  and  as  little  able  to 
meet  the  charge  in  the  one  case  as  in  the  other. 

No  such  objection  applies  to  general  evidence  affecting  the  plain- 
tiff's character,  for  every  one  who  possesses  a  good  character  in 
society  may  come   prepared   with  general  evidence  to  support  it, 

that  what  they  have  said  is  true,  or  they  should  be  ready  to  discharge  themselves  of  ma- 
lice under  the  general  issue  in  some  of  the  ways  which  have  been  allowed  as  legitimate 
grounds  of  defence. 

The  same  answer  may  be  given  to  the  offer  of  evidence,  that  there  were  stories  and 
rumors  in  the  neighborhood,  of  a  nature  to  raise  a  belief  in  the  mind  of  the  wife  that 
what  she  said  was  true.  These  very  stories  may  have  originated  in  slander;  and  char- 
acter could  not  be  protected  if  the  third  or  fourth  circulator  should  be  able  to  defend 
himself  or  reduce  the  damages,  because  he  only  gave  more  publicity,  and  added  the 
weight  of  his  character  to  calumny  which  had  been  oiiginated  by  others. 

We  take  the  rule  to  be  that  the  general  bad  character  of  the  plaintiff  may  be  shown, 
because  he  relies  upon  its  goodness  before  calumniated,  as  the  principal  ground  of  dam- 
ages. A  fair  character  has  been  maliciously  attacked,  and  the  law  will  repair  the  mis- 
chief by  damages;  but  to  a  reputation  already  soiled,  the  injury  is  small.  The  plaintiff 
is  supposed  also  to  be  ready  at  all  times  to  show  the  general  goodness  of  his  character; 
but  it  would  be  unreasonable  to  require  of  him  to  have  witnesses  ready  to  disprove  par- 
ticular facts  which  he  has  no  notice  are  intended  to  be  proved  against  him. 

In  New-York,  the  doctrine  of  Wolcott  v.  Hall,  6  Mass.  R.  514,  was  adopted  by  the 
Supreme  Court  in  Matson  v.  Buck,  5  Cowen,  499.  See  also  to  the  same  effect,  Bnoks 
v.  Bemiss,  8  Johns.  R.  455.  Boot  v.  King,  7  Cowen,  629  to  631 ;  Mopes  v.  H 'eeks,  4 
Wendell,  669;  Oilman  v  Lowell,  8  Wendell,  579;  and  Inman  v.  Foster,  Id.  602;  and 
particularly  Root  v.  King  and  Oilman  v.  Lowell,  in  which  the  English  cases  on  this 
subject  are  reviewed  and  commented  upon. 

In  thifl  country  it  ma;  be  considered  as  settled  law,  that  evidence  of  general  charac- 
ter, may  be  given  in  mitigation  of  damage*.  Springsteen  v.  Field,  Ambon's  N.  1'. 
105:  Paddock  v.  Salisbury,  2  Cowen,  811;  Root  v.  King,  7  Cow<  D,  6SM  and  i  Wendell, 
114,  S.  C.  in  error;  Wolcott  x.  Hall,i\  -Mass.  II.  514;  Bodwell  ▼.  9wan  and  wife,  3 
Pick.  370;  Brunson  v.  Lynde,  1  Root,  354;  Seymour  v.  Merrills,  Id.  459;  Justin  v. 
Hunchelt,  2  Root,  149;  Vide  v.  fVhitefitld,  2  llavw.  222;  McLuny  v.  Buford,  1  Nott 
&  McCord,  268;  Eifert  v.  Sawyer,  2  Nott  X  McCord,  511. 

In  Foot  v.  Tracy,  1  Johns.  K.  45,  which  arose  as  early  as  1806,  the  question  was  left 
undecided,  whether  in  an  action  for  a  libel  the  defendant  could,  under  the  plea  of  the 
general  issue,  give  in  evidence  the  general  character  of  the  plaintiff  in  mitigation  of 
'  damages  ;  Chief  Justice  Kent  and  J.  THOUP8M  being  of  opinion  that  the  evidence  was 
admissible,  and  Justices  Livingston  and  Tompkins  holding  the  reverse.  Mr.  Justice 
Sfencer  delivered  no  opinion  in  that  case  1  ut  shortly  afterwards,  at  a  circuit  where  be 
presided,  permitted  such  evidence  to  be  given  in  mitigation  in  the  case  cited  above  of 
Springsteen  v.  Field. 

39* 


95 


CIVIL  REMEDY. 


*96  ]  but  no  one  can  be  ready  to  answer  *particular  charges 
unless  lie  be  previously  apprised  of  them  (o)  [1]. 
[  *97  ]  *ln  the  case  of  Knobell  v.  Fuller  (/?),  evidence  was  ad- 
mitted at  Nisi  Prius,  of  specific  facts,  upon  the  general  doc 
trine,  that  any  evidence  was  admissible  in  mitigation  which  fell  short 
of  a  complete  justification  ;  and  in  the  case  of  the  Earl  of  Leicester 
v.  Walter  (g),  Sir  J.  Mansfield,  C.  J.  seems  to  have  acceded  to  the 
general  position  ;  but  in  that  case  which  the  evidence  was  admitted 
was  of  a  general  nature  and  not  of  specific  [2]. 


(o)  See  the  observations  of  Bayley,  J.  in 
R.  v.  Watson,  2  Starkie's  C.  152. 

(p)  An  action  was  brought  for  a  libel 
published  in  the  Morning  Post  charg- 
ing the  plaintiff  with  having  been  con- 
c  rned  with  a  person  of  the  name  of 
Knowles  in  procuring  money  from  the  rela- 
tives and  friends  of  persons  convicted  of 
capital  offences,  under  pretence  of  being 
able  to  procure  pardons  through  the  inter- 
ference of  the  Duke  of  Portland,  in  whose 
service  the  plaintiff  was. 

The  defendant  pleaded  the  general  issue, 
and  in  mitigation  of  damages,  offered  evi- 
dence to  prove  strong  grounds  of  suspicion 
against  the  plaintiff.  Eyre,  C.  J.  at  first 
doubted  whether  this  evidence  was  admis- 
sible. 

Adair,  Serj.  for  the  defendant  admitted 
that  the  defendant  could  not  give  in  evi- 
dence on  the  general  issue  facts  which,  if 
pleaded,  would  amount  to  a  justification; 
but  contended  that  they  might  prove  facts 
which  showed  there  was  cause  of  suspicion, 
and  therefore  proved  that  the  defendants 
were  not  induced  to  publish  this  paper  by 
reason  of  malice  against  the  plaintiff,  but 
for  the  purpose  of  conveying  information  to 
the  public,  this  being  a  concern  of  a  public 
nature.     A  note  of  the  case  of  Curry  v. 


Waller  was  then  read,  in  which  his  Lord- 
ship admitted  the  distinction,  and  received 
such  evidence, 

Eyre,  C.  J.  said,  he  believed,  in  that 
case,  he  admitted  the  evidence  in  order  to 
show  that  the  defendant  had  not  in  fact 
published  a  libel,  he  having  only  published 
the  proceedings  of  a  court  of  justice, 
which  the  court  afterwards  determined  to 
be  no  libel  in  point  of  law;  but  he  would 
not  deny  but  he  might  also  have  received 
it  in  mitigation  of  damages:  for  though  he 
had  never  known  the  evidence  given  in  an 
action  for  a  libel,  yet  he  had  always  under- 
stood, that  in  an  action  for  words  the  de- 
fendant might,  in  mitigation  of  damages, 
give  any  evidence  short  of  such  as  would 
be  a  complete  defence  to  the  action,  had  a 
justification  been  pleaded. 

The  defendant  then  called  Mr.  Ford,  a 
magistrate,  to  prove  that,  on  the  examina- 
tion of  the  plaintiff  before  him,  he  admitted 
that  he  had  received  five  guineas  for  con- 
veying a  letter  to  the  Duke,  and  the  Duke 
himself  being  examined,  said,  that  think- 
ing the  plaintiff  had  misconducted  himself 
in  that  respect,  he  had  discharged  him 
from  his  service. 

(g)  2  Camp.  251.     Supra,  89. 


[1]  In  the  case  of  the  Earl  of  Leicester  v.  Waller  2  Camp.  251,  the  counsel  for 
the  defendant  said  arguendo:  that  in  a  case  before  Le  Blanc,  J.  at  Worcester,  that 
learned  judge  received  evidence  under  the  general  issue,  that  the  plaintiff  had  been 
guilty  of  attempts  to  commit  the  crime  which  the  defendant  had  imputed  to  him.* 
According  to  this  view  of  the  law,  which  is  believed  to  be  entirely  correct,  the  difficulty 
suggested  by  the  learned  author  is  obviated. 

[2]  The  principle  advanced  in  Knobell  v.  Fuller,  and  recognized  as  sound  law  in  the 
Earl  of  Leicester  v.  Walter,  that  a  defendant  may,  in  miligution  of  damages,  give  any 


EVIDENCE  I\  MITIGATION.  97 

There  seems  to  be  no  well-founded  distinction  as  to  the  admission 
of  general  evidence  of  character,  whether  the  defendant  has  simply 
pleaded  the  general  issue,  or  has  pleaded  a  justification  as  well  as 
the  general  issue  ;  for  the  object  of  such  evidence  is  to  diminish  the 
damages,  which  he  is  entitled  to  do,  though  he  fail  to  establish  his 
justification  (  r  |  [1]. 

(r)  Lord  Leicester  v.  Walter,  2  Camp.  251.  1  M.  &  S.  284.  Rodriguez  v.  Tad- 
mire,  2  Esp.  C.  72".     Vide  supra,  8'.». 

evidence  short  of  such  as  would  be  a  complete  defence  to  the  action,  had  a  justification 
been  pleaded  Ins  in  England  a  wider  influence  than  the  mere  regulation  of  tin-  | 
to  the  diameter  of  the  plaintiff  ;  it  extends  t"  the  admission  in  evidence  of  all  thefaeU 
and  circumstances  of  the  case  which  can  have  an  influence  in  guiding  the  jury  in  deter 
mining  the  quo  animo  the  words  are  spoken,  and  thus  measuring  the  damages  to  be 
awarded  to  the  plaintiff.  Mr.  Btarkie  feels  embarrassed  by  the  principle  in  the  broad 
terms  in  which  it  is  laid  down  in  Knobcll  v.  Fuller,  considering  it  as  interfering  with 
the  rule  of  U.iderwood  V.  Parkes,  that  the  truth  of  the  imputation  cannot  be  given  in 
evidence  under  the  general  issue,  but  that  it  must  be  specially  pleaded,  to  render  this 
evidence  admissible.  The  practice,  he  says,  would  be  attended  with  all  the  hard-hip  and 
inconvenience  which  would  result  from  admitting  a  complete  justification  under  the 
general  issue,  for  the  plaintiff  would  be  equally  liable  to  surprise,  and  as  little  able  to 
meet  the  charge  in  the  one  case  as  the  other.  The  courts  in  this  country  have  taken  the 
same  view  of  this  question,  holding  that  evidence  tending  to  prove  the  trutli  of  the 
charge,  or  proof  of  particular  facts  forming  links  in  the  chain  of  circumstantial  evi- 
dence against  the  plaintiff,  to  establish  the  truth  of  the  charge  cannot  be  received  under 
the  general  issue  in  mitigation  of  damages,  War  mouth  and  w'fe  v.  Cramer,  3  Wen- 
dell, 395;  Gilman  v.  Lowell,  8  Id.  573;  Purple  v.  Horton,  13  Id.  9;  Bodwtll  v.  Swan, 
3  Pick.  277;  Treat  x.  Browning,  4  Conn.  R.  414,  and  Chealwood  v.  Mayo,  5  Munf.  16. 
Amitting  this  view  of  the  rule  of  Knobell  v.  Fuller  to  be  correct,  whilst  the  defendant 
attempts  to  justify,  it  is  not  perceived  how  it  interferes  with  the  practice  of  the  courts, 
both  of  England  and  this  country;  to  receive  evidence  of  the  facts  and  circumstances  of 
the  case,  for  the  purpose  of  enabling  the  jury  to  pass  upon  the  71/0  animo  the  words  were 
spoken,  or  publication  made  and  understanding!;  assess  the  damages  which  the  defend- 
ant ought  to  pay.  East  v.  Chapman,  1  Moody  and  M  ilkin,  10;  Saunders  v.  Mills,  C 
Bing.  213;  Chalmers  v.  Shackell,G  Carr.  &.  Payne,  475;  Charlton  v.  Wullon,  G  Carr. 
and  Payne,  385.  If  the  facts  offered  to  be  proved  would  establish  or  have  a  tendency  to 
establish  the  truth  of  the  charge,  and  the  defendant  has  omitted  to  plead  specially,  the 
evidence  of  course  must  be  rejected;  but  if  all  intention  to  prove  the  truth  of  the  charge 
is  disclaimed,  and  the  evidence  is  offered  solely  for  the  purpose  of  giving  a  character  to 
the  malice  which  the  law  implies  from  the  falsity  of  the  charge;  or  in  Other  veils,  to 
show  that  the  defendant  did  not  act  wantonly  and  under  the  influence  of  actual  malice, 
it  cannot  be  rejected  consistent  with  the  principles  of  equity  and  justice,  npon  which  the 
action  for  defamation  is  based.  So  the  law  is  supposed  to  be  conceded  by  the  court  in 
Gilman  v.  Lowell,  8  Wendell,  582,  and  also  in  Mapes  v.  Weeks,  4  Id.  Gt',2,  and  Root 
v.  King,  7  Cowen,  G33.  See  vol.  I.  p.  455,  n.  [1]  and  same  vol.  p.  45G,  n.  [1]  for  an 
enumeration  of  cases  in  which  the  facts  and  circumstances  of  the  case  may  be  shown 
under  the  plea  of  the  general  issue. 

[1]  It  is  believed  after  a  diligent  examination,  that  it  never  has  been  decided,  either 
at  nisi  prius  or  in  bank,  except  in  the  case  of  Snowdon  v  Smith,  1  Maulc  and  Sel.  2b7  u. 


97  CIVIL  REMEDY. 

The  defendant  is  not  allowed  to  prove,  under  the  gen- 
[  *98  ]    era!   issue,  even  in  mitigation  of  damages,  that  *the  spe- 
cific fact  in  which  the  slander  consists,  and  in  respect  of 


that  a  defendant  in  an  action  of  slander  is  not  at  liberty,  under  the  plea,  of  the  gene- 
ral issue,  to  give  evidence  in  mitigation  of  damages,  where  with  that  plea,  he  has 
pleaded  a  plea  of  justification,  but  failed  to  establish  it  by  proof.  There  are  abundant 
dicta  to  that  effect,  but  no  decisions.  In  Snowdon  v.  Smith,  the  defendant  offered  to 
give  evidence  of  rumors  of  a  crime  committed  by  the  plaintiff,  like  that  imputed  to  him, 
and  Chambre,  J.  refused  to  receive  it,  because  the  defendant  had  put  the  issue  upon  the 
truth  of  the  charge.  In  Kirkman  v.  Oxley,  however,  which  was  an  action  for  words 
charging  the  plaintiff  with  larceny,  Heath,  J.  allowed  the  defendant,  who  had  justified, 
to  give  evidence  of  the  plaintiff's  general  character  in  mitigation  of  damages ;  Lincoln 
Sum.  Assizes,  1815,  reported  in  1  Phill.  Ev.  147,  n.  2,  third  London  ed.  1817.  Again: 
in  Mawbray  v.  Barker,  where  a  justification  was  pleaded,  together  with  the  general  is- 
sue, general  evidence  was  admitted  by  Lord  Tenterden,  at  the  Lincoln  Sum.  Assizes, 
1826,  as  the  safer  course:  reported  in  2  Phill.  Ev.  250,  n.  3,  Gould's  ed.  of  1839,  a  copy 
of  the  seventh  English  edition,  printed  in  1829.  The  decision  of  Snowdon  v.  Smith, 
which  was  a  nisi  prius  case,  is  thus  not  only  over  balanced  by  two  other  nisi  prius  cases, 
but  it  is  at  war  with  the  first  principles  of  the  law  of  slander,  and  of  the  rules  of  plead- 
ing. The  defendant  is  allowed  by  statute  to  plead  double — he  may,  if  he  think  proper 
to  do  so,  accompany  his  plea  of  not  guilty  with  a  plea  of  justification.  Under  the  for- 
mer plea,  he  can  not  only  require  the  plaintiff  to  give  the  proofs  necessary  to  sustain  the 
action,  but  may  show  the  facts  and  circumstances  of  the  case,  to  satisfy  the  jury  that 
the  words  were  spoken  upon  an  occasion  which  protects  him  from  liability  to  an 
action,  either  absolutely  or  conditionally,  or  to  show  the  quo  animo,  the  words  were 
spoken,  or  that  the  plaintiff  was  a  man  of  sullied  reputation  at  the  time  of  the  speaking 
of  the  words,  in  mitigation  of  damages.  How  then  can  it  be,  that  by  availing  himself 
of  the  right  guaranteed  to  him  by  law,  of  pleading  double,  he  should  lose  the  benefit  of 
both  pleas  if  he  fail  in  establishing  one.  It  is  true  that  in  Jackson  v.  Stetson,  15  Mass. 
R.  57,  such  a  doctrine  was  advanced,  the  court  holding  that  a  plea  of  justification  not 
verified,  relieved  the  plaintiff  from  the  necessity  of  proving  his  case  under  the  general 
issue;  but  the  authority  of  that  case  has  never  been  recognized  by  any  court,  other  than 
that  by  which  it  was  pronounced.  In  the  same  case,  it  was  said  too,  that  by  a  plea  of 
justification  net  verified,  the  defendant  is  precluded  from  showing  any  facts  in  mitigation; 
but  the  opinion  is  obiter.  In  Lamed  v.  Buffinton,  3  Mass.  R.  553,  it  was  said  that 
when  a  defendant  pleads  a  justification,  and  fails  to  verify  his  plea  by  proof,  he  is  not 
at  liberty,  under  the  general  issue,  to  show  that  the  words  were  spoken  through  heat 
or  passion,  and  not  from  malice;  but  he  may  prove  that  the  plaintiff  himself  occasioned 
thecharge,  or  in  other  words  that  the  plaintiff  by  his  own  conduct,  gave  cause  of  suspicion, 
and  thus  himself  produced  the  mischief  of  which  he  complained.  This  case,  it  will  be  per- 
ceived although  cited  to  support  the  doctrine  for  which  Snowdon  v.  Smith  has  been  quoted, 
instead  of  doing  so,  holds  directly  the  reverse,  for  it  admits  that  notwithstanding  the 
failure  to  support  the  plea  of  justification,  evidence  even  in  bar  of  the  action,  is  admis- 
sible under  the  general  issue.  Besides,  all  that  was  said  by  the  court  on  this  subject  is 
obiter. 

On  the  other  hand,  in  Kennedy  v.  Gregory,  1  Binney  85,  a  majority  of  the  judges 
held  that  evidence  which  by  the  court  was  deemed  evidence  in  mitigation,  was  ad- 
missible,  although  the  defendant  had  pleaded  a  justification,  and  failed  to  prove  it.  In 
Coleman  v.  Southwick,  9  Johns.  R.  46,  evidence  in  mitigation  was  received  in  an  ac- 


EVIDENCE  IX  MITIGATION.  98 

which  the  action  is  brought,  was  communicated  to  him  by  a  third 
person  (s). 

But  where  the  defendant  has  in  the  libel  referred  to  the  source 
from  which  lie  derived  his  information,  he  may,  it  -'.'ems,  although 
he  has  not  justified,  prove,  under  the  general  issue,  that  he  did  in 

(s)  Mills  v.  Spencer,  Holt's  C.  518. 

tion  for  a  libel,  although  a  plea  of  justification  had    been  interpose!,  which  was  not 
verified  by  proof,  and  so  abo  in  Hotchkus  v.  Laihrop,  1  Johns.  R.  288.     In    R 
King,  7  Cowen  61!  ,  evidence  of  the  general  character  of  the  plaintiff  was 

received  on  the  trial  in  mitigation  of  damages,  although  the  defendant   had   plea  led  a 

justification,  and  which  he  failed  to  prove.  C.  J.  Savage,  on  the  motion  for  a  D6W  trial, 
after  adverting  to  the  doctrine  laid  down  in  1  1'hil.  Ev.  147.  on  the  authority  of  Snow- 
don  v.  Smith,  that  such  evidence  is  not  admissible  when  the  defendant  by  his  plea, 
puts  in  issue  the  truth  of  the  charge,  cites  the  ruling  in  Kir  km  an  v.  Oxiey,  with  appro- 
bation, and  observes  that  by  that  case  it  seems  that  bad  character  generally  may  be 
shewn  under  any  state  of  pleadings.  Chancellor  W.u.wouth,  in  the  Court  of  Errors 
in  the  same  case,  concurred  in  this  opinion,  and  laid  down  the  law  to  be,  that  in  an  ac- 
tion for  a  libel,  the  defendant  may,  in  all  cases,  go  into  evidence  of  the  general  charac- 
ter of  the  plaintiff.  He  observed,  "  Some  of  the  most  recent  decisions  both  in  this  coun- 
try and  in  England,  seem  to  be  in  favor  of  allowing  evidence  of  general  bad  character, 
although  there  is  a  justification.  I  am  disposed  to  defer  to  those  decisions;"  but  the 
Chancellor  added  that  he  was  "  satisfied  the  rights  of  plaintiffs  and  the  safety  of  those 
who  are  accused  of  crime,  will  not  allow  the  principle  to  be  extended."  4  Wendell  139, 
140.  It  will,  however,  be  perceived  that  all  the  dicta  on  this  subject,  are  founded  on  the 
ruling  of  &IAMBBB,  J.  in  Snowdon  v.  Smith,  and  that  the  evidence  rejected  in  that 
case  was  offered  to  show  that  the  character  of  the  plaintiff  was  tarni?hed  previous  to 
the  speaking  of  the  words.  The  decision  of  the  judge,  therefore,  necessarily  was  limited 
to  the  admissibility  of  the  evidence  for  that  particular  pur  pose,  and  did  not  embrace  the 
general  doctrine  of  what  evidence  was  admissible  in  mitigation,  when  the  defendant  had 
put  the  issue  upon  the  truth  of  the  charge  and  failed  to  maintain  it  by  proof.  Besides; 
it  is  very  questionable  from  the  statement  of  the  case  of  Snowdon  v.  Smith,  in  note  (n) 
supra,  page  89,  whether  the  prinoiple  supposed  to  have  been  advanced  byChambreJ. 
was  infuct  advanced  by  him  ;  it  seems  that  he  only  held  in  that  case  that  evidence  of 
rumors  was  inadmissible  in  support  of  a  plea  of  justification. 

In  1849,  the  Legislature  of  New  York  enacted,  that  in  an  action  for  libel  or  slander 
the  defendant  may  in  his  answer  allege  both  the  truth  of  the  matter  charged  as  defama- 
tory, and  any  mitigating  circum&luiicis,  to  reduce  the  amount  of  damages.  And 
whether  he  prove  the  justification  or  not,  he  may  give  in  evidence  the  mitigating  cir- 
cumstances.    Code  as  amended  1849,  §ltj">. 

A  defendant  failing  in  his  proof  of  justification,  may  offer  evidence  in  mitigation  of 
damages,  Morehead  v.   Junes,  'J  B.  Blunroe,  210. 

So  in  an  action  for  defamation  either  party  may  with  a  view  to  the  damages  gjlve  evi- 
dence to  prove  or  disprove  the  existence  of  a  malicious  motive  ;  but  if  the  evidence  giv- 
en for  that  purpose  by  a  plaintiff,  establishes  another  cause  of  action,  the  jury  should  be 
cautioned  against  giving  damages  in  respect  to  such  other  cause  of  action,  Pearson  v. 
Lemaitre,  5  Maun.  &  G.  700  ;  G  Scott.  N.  R.  607. 


98  CIVIL  REMEDY. 

fact  receive  such  information  (7).     As  where  the  libel   refers  to  a 
newspaper  as  the  medium  of  communication  (u). 

In  a  late  case  the  defendant  was  allowed  to  inquire  of  a  witness 
whether  he  had  not  read  the  substance  of  the  alleged  libel  in  a  pub- 
lic newspaper  (x). 

In  Miillett  v.  Hu/lon,  (y),  the  declaration  stated  that  the  plaintiff 
was  about  to  take  a  house,  but  that  the  defendant  in  order  to  prevent 
him,  addressed,  a  letter  to  the  owner,  containing  the  following  pass- 
age: "  Mr.  Hulton  cannot  for  a  moment  suppose  that  Mr.  Salter  is 
acquainted  with  the  newspaper  particulars  relative  to  the  party  al- 
luded to  (the  plaintiff)  ;  otherwise  it  is  not  probable  that  Mr.  Salter 
would  introduce  an  acknowledged  *felon,  debauchee,  and 
[  *99  ]    seducer,  into  the  neighborhood  of  Angel  Row." 

Erskine,  for  the  defendant,  contended  that  he  was  at 
liberty  to  go  into  evidence  that  the  plaintiff  had  been,  in  fact,  a 
seducer,  not  as  an  answer  to  the  action,  but  in  mitigation  of  dam- 
ages. He  admitted,  that  not  having  pleaded  the  truth  of  the  words, 
he  could  not  prevent  a  verdict  from  passing  against  the  defendant  ; 
but  that,  having  referred  to  newspaper  authority  for  the  words  used 
in  the  letter,  and  not  having  given  them  as  his  own  or  from  his  own 
knowledge,  the  defendant  should  be  at  liberty  to  give  the  fact  in 
evidence  as  coming  from  another  source,  to  which  he  referred  in  his 
letter ;  and  as  the  slander  did  not  proceed  from  him,  it  would  go  in 
mitigation  of  damages. 

Lord  Ellenborough,  C.  J.  said,  that  as  the  pleadings  stood  on  the 
record,  the  evidence  offered  was  inadmissible  as  an  answer  to  the 
action.  The  libel  itself  was  proved,  and  there  was  no  justification 
that  entitled  the  defendant  to  a  verdict;  but  he  added,  that  as  the 
words  referred  to  a  newspaper,  and  were  so  written  as  a  quotation 
from  a  newspaper,  if  the  newspaper,  could  be  produced,  he  would 
admit  it  as  evidence,  as  having  caused  the  defendant  to  adopt 
what  he  had  written  in  the  letter,  he  having  so  referred  to  it  [  a  a] 

(0  lb.  see  R.  v.  Burdelt,  4  B.  &  A.  717.  [a  a]  So  when  the  libel  purported  to  be 

(u)  Mullett  v.  Hullon,  4  Esp.  C.  248.  a  report  of  a  coroner's  inquest,  Lord  C.  J. 

(x)   Wyatt  v.  Gore,   1  Holt's  C.  303.  Abbott  held   that  what  really  passed   at 

(y)  4  Esp.  248.                       .  the  taking  of  the  inquest  was  evidence  un- 

[1]  Although  the  proof  adduced  by  a  defendant  in  justification  of  a  charge  of  forgery 
falls  short  of  establishing  thespecialplea.it  maybe  taken  into  consideration  in  miti- 
gation of  damages.  Per  Tindal,  C.  J.  in  Chalmers  v.  Shackell,  6  Carr.  &  Payne  475. 
In  an  action  for  a  libel  purporting  to  be  a  report  of  what  occurred  before  commission- 


EVIDENCE  IN  MITIGATION.  99 

It  is  no  defence  to  shew  that  the  plaintiff  has  been  in  the  habit 
of  libelling   the   defendant,  but  it   is  evidence,  it   has   been    said, 

der  the  general  issue  in  mitigation  of  dam-  show  in  mitigation  that  lie  copied  the  libel- 

ages.     Being  short  of  a  justification,  it  is,  lous  paragraph  from   a  public  newspaper, 

said  the  C.  J.  upon  the  general  principle  bat  not  that  many  other  journals  publish- 

admissible    as    governing    the    damages,  ed  the  same  statement  Saunders  v.  J/<  Is. 

East  v.  Chapman,  1  Moody  &  Malkin  46.  G  Bingh.  213. 
So  it  was   held   that   the   defendant   may 

ers  of  inquiry  respecting  corporations,  it  was  held  that  the  defendant  could  not  give 
evidence  of  the  accuracy  of  the  report  as  a  matter  of  justification,  but  that  he  might 
give  such  evidence  iu  mitigation  of  damages.  Charlton  v.  If  'alton,  C  Carr.  &  Payne 
385. 

In  Morris  v.  Duane,  1  Binney  90,  n.  the  defendant  was  allowed  to  give  in  evidence, 
in  mitigation  of  damages,  a  paper  containing  the  libellous  charge,  which  had  been  in 
the  possession  of  a  preceding  editor,  to  whose  establishment  he  had  succeeded,  for  the 
purpose  uf  showing  that  the  defendant  had  not  devised  the  slimier.  This  decision  was 
approved  in  Coleman  v.  Southwick,  9  Johns.  R.  49,  where  C.  J.  Kent  conceded  that 
evidence  that  the  defendant  had  been  told  by  a  third  person,  that  what  was  alleged  to 
be  libellous  had  appeared  in  a  public  newspaper,  would  have  been  admissible  had  it 
been  offered  to  be  proved  by  the  persun  giving  the  information,  and  this  although  a 
plea  of  justification  had  been  interposed.  So  in  Oilman  v.  Lowell,  8  Wendell  673, 
the  defendant  had  spoken  slanderous  words  of  the  plaintiff,  when  no  occasion  which  the 
law  justifies  authorized  him  to  speak;  but  still  he  had  cause  to  believe  that  whit  he 
uttered  was  the  truth,  and  it  was  held  that  he  should  have  been  permitted  to  show  the 
facts  and  circumstances  of  the  case,  in  mitigation  of  damages.  The  plaintiff,  against 
whom  a  judgment  had  been  rendered  in  a  justice's  court,  to  prevent  the  issuing  of  an 
execution,  had  made  oath  that  he  was  a  freeholder,  and  that  the  deed  of  his  property 
was  duly  recorded.  The  defendant,  on  diligent  search  at  the  clerk's  office,  not  finding 
the  deed  on  record,  charged  the  plaintiff  with  false  swearing.  The  deed  was  in  fact  re- 
corded, but  the  names  of  the  parties  had  not  been  entered  in  the  index,  in  consequence 
of  which,  the  record  of  the  deed  was  not  found  at  the  time  of  the  search.  On  the  trial, 
the  defendant  offered  to  prove  the  above  fact.-,  in  mitigation  of  damages,  but  the  judge 
refused  to  receive  the  evidence,  and  the  plaintiff  obtained  a  verdict  for  $250.  Anew 
trial  was  granted,  on  the  ground  that  the  evidence  ought  to  have  been  received  in  miti- 
gation of  damages.  C.  J.  Savage,  who  pronounced  the  judgment  of  the  court,  mani- 
festly was  inclined  to  go  farther.  The  facts,  he  observed,  go  far  to  diminish  the  quan. 
turn  of  malice  ;  perhaps  they  show  as  far  as  can  be  done  the  absence  of  malice ;  but 
all  that  was  done  was   to  direct  the  evidence  to  be  received   in  mitigation. 

There  is  one  other  ground  of  mitigation  to  which  it  may  be  well  to  advert.  //  seems 
that  an  admission  by  the  defendant  when  interposing  his  pica  that  at  the  time  of  making 
the  slanderous  charge,  he  acted  under  a  mistake  ot  foots,  would  be  available  in  miti- 
gation of  damages.  See  the  language  of  the  court  in  Lamed  v.  Buffington,  Z  .Mass. 
It.  646,  as  qualified  in  Alderman  v.  French,  1  Pick.  19.  Sie  also  what  was  said  by 
C.  J.  Savage  in  J\Iu/>es  v.  Week*,  4  Wendell  668,  and  the  intimation  of  Nelsoji,  0.  J- 
in  HotchkUs  v.  Oliphant,  2  Hill,  515,  that  a  withdrawal  or  recantation  of  the  charges 
by  way  of  atonement,  would  be  admissible  in  evidence  in  mitigation  of  damages.  In 
Starkie's  Ev.  Part  IV.,  p.  882,  it  is  Said  th  it  B  defendant  indicted  for  publishing  a  li- 
bel was  permitted  to  prove,  with  a  view  to  the  mitigation  of  punishment,  that  he  stop- 
ped the  sale  of  the  publication. 


100  CIVIL  REMEDY. 

[  *100  ]  *in  mitigation  of  damages  (s).  The  latter,  however,  of 
these  positions  is  too  large,  and  it  seems  that,  at  most, 
the  defendant  cannot  be  allowed  to  do  more  than  prove  the  publica- 
tion of  libels  by  the"  plaintiff,  which  are  connected  with  the  libel, 
which  is  the  subject  of  the  action  (a).  As  where  such  previous 
libels  constitute  the  provocation  to  the  principal  libel  (6)  [1]. 

As  the  defendant,  when  he  insists  upon  the  truth  of  the  imputation, 
must  plead  it  specially,  the  proof  must  of  course  depend  in  a  great 
measure  upon  the  allegations  upon  the  record ;  there  seems  to  be 
little  if  any  difference  between  the  evidence  in  proof  of  a  specific 
charge,  thus  involved  in  a  civil  proceeding,  and  the  evidence  which 
is  essential  to  support  an  indictment  containing  a  similar 

*101  ]  ^charge  (c)  [2].  It  may  indeed  happen,  that  more  pre- 
cise evidence  may  be  necessary  to  support  such  a  justifi- 
cation than  would  be  sufficient  to  sustain  an  indictment,  for  the  proof, 
in  the  former  case,  is  governed  by  the  allegations  in  the  plea,  and 
allegations  in  a  plea  may  frequently  require  precise  proof,  though 
they  would  not  have  done  so  in  an  indictment.  For  instance,  if  the 
slander  consist  in  charging  the  plaintiff  with  having  stolen  sov- 
ereigns in  the  plural,  the  plea  must  necessarily  charge  him  in  the 
plural  also,  and  the  defendant  would  fail  in  his  justification  if  he 
could  prove  no  more  than  the  stealing  of  one  ;  .but  on  the  trial  of  an 
indictment  for  larceny,  the  variance  would  be  wholly  immaterial. 

It  has  been  seen  that,  though  the  slander  be  general,  the  plea  of 
justification  must  be  particular  (d).  But  should  the  plaintiff,  instead 
of  demurring  to  a  plea  for  generality,  take  issue  upon  it,  the  defend- 
ant will  still  be  bound  to  prove  the  slander  or  libel  as  stated  in  the 
declaration  with  all  its  circumstances  of  exaggeration  (e)  ;  even 
although  the  plea  merely  state  that  the  matters  alleged  in  the  sup- 

(z)  Finnerty  v.    Tipper,   2  Camp.  7G.  Abbott,  L.  C.  J.,  whether  general  evidence 

See  Pasquin's  case,  ib.  and  Tabartv.  Tip-  would   be  admissible  to   prove  the  fact  ;  it 

per,  1  Camp.  380.  seems,  however,  to  be  clear   in   principle, 

(a)  J\Iay  v.  Brown, 3  B.  &  C.  113,  gene-  that  the  libels  themselves  ought  to  be 
ral  evidence  that  the   plaintiff  has  been  in  strictly  proved. 

the  habit  of  libelling  the  defendant  is  inad-  (c)  Cooke  v.  Field,  3  Esp.  C.  233. 

missible.      Finnerty   v.    Tipper,  2  Camp.  (d)  Supra,  vol.  I.  477. 

76.      Wakcley  v.  Johnson,  1  R.  &  M.  422.  (e)    Weaver  v.  Lloyd,  2  B.  &  C.  678. 

(b)  Ib.     It  was  doubted  in  that  case,  by 

[1]  See  also  Walls  v.  Frazer,  7  Adolph.  &  Ellis  223;  2  Scott's  Exch.  R.  642; 
Beai(h!ey  v.  Maynard,  4  Wendell  336  and  7  Id.  500,  S.  C.  in  error  ;  and  Gould  v. 
Weed,  12  Wendell  12. 

[2]  Same  doctrine,  Woodbeck  v.  Keller,  6  Cowen,  118. 


EVIDENCE  IX  JUSTIFICATION.  101 

posed  libel  are  true  in  substance  and  effect  (/)  ;  where  a 
libel  charged  the  plaintiff  'with  having  knocked  out  the  [  *102  ] 
eye  of  a  horse  and  other  nets  of  cruelty,  and  the  defend- 
ant pleaded  that  the  matters  contained  in  the  alleged  libel  were 
true  in  substance  and  in  fact,  the  jury  having  found  that  it  was  true 
in  all  particulars,  except  that  the  eye  was  not  knocked  out,  the  court 
held  that  the  plaintiff  was  entitled  to  a  verdict  on  that  plea  (i,r). 
But  it  would  not  be  necessary  in  such  case  to  prove  circumstances 
which  were  not  ingredients  in  the  slanderous  charge  (//). 

Where  words,  not  contained  in  the  declaration,  are  given  in  evi- 
dence in  order  to  prove  malice,  the  defendant  may,  under  the  gene- 
ral issue,  prove  the  truth  of  those  words  (i). 

The  acquittal  of  the  plaintiff,  on  an  indictment  charging  him  with 
the  same  offence  as  is  specified  in  the  plea,  does  not  preclude  the 
defendant  from  proving  the  truth  of  the  charge  (/«;),  nor,  indeed, 
does  it  seem  to  be  evidence  at  all. 

Evidence  of  general  good  character  is  admissible  to  rebut  the  pre- 
sumption of  guilt  (/).      And  the  plaintiff   may  adduce 
general  evidence  of  good  "character,  before  any  evidence    |    *10o  ] 
to  the  contrary  has  been  adduced  on  the  other  side  ('»)• 

Where  the  defendant  justifies,  alleging  that  he  heard  the  words 
from  another  whose  name  he  mentioned  when  he  reported  them,  the 
proof  depends  on  the  issue  taken.  Upon  issue  taken  on  the  general 
replication  de  injuria,  &c,  it  lies  on  the  defendant  to  prove,  that 
lie  heard  the  very  words  spoken  by  such  third  person,  as  alleged  in 
the  plea,  and  that  on  repeating  them  he  gave  up  his  author  ;  for  the 
object  of  the  plea  is  to  shew,  that  the  defendant  has  afforded  to 
the  plaintiff  a  certain  cause  of  action  against  another.  It  would 
not  be  sufficient  under  this  issue  to  prove,  that  the  third  person 
spoke  the  words  to  the  same  effect  with  those  alleged  (n)  [1]. 

In  actions  for  malicious  prosecutions  and  other  special  actions  on 

(/)  lb.  (>«)   k'ingx.  Waring,   5   Esp.    C.    13. 

(g)    Weaver  v.    Lloyd,  2  B.  &  C.  GTS.  But  there  the  action  was  brought  by  a  scr- 

(h)  Edwards  v.  Bell,  1  Bing.  403.   Su-  Yant  for  giving  a  false  character.   See  aute, 

pra  v.  I,  p.  483.  p.  60,  note  (ui). 

(i)   Wurnev.  Chadwell,  2Starkie'sC.  (")  See  Lord  JVorthomffonU  eate,12 

457.     Collison  v.  Loder,  B.  N.  P.  10.  Rep.  202.   Crawford  v.  Middliton,  1  Lev. 

(k)  England  v.  Bourlce,  3  Esp.  C.  80.  32.     Maitlandv.  Golding,  2  East,   425. 

(/)  See  Starkie's  Law  of   Evidence,  part  B'oolnoth  v.  Meadow,  o  East,  403. 
iii.  365. 


[1]  See  Vol,  I.  p.  320,  n.  [1]. 

Vol.  II.  40 


!03  CIVIL  REMEDY: 

the  case,  where  the  plaintiff  is  bound  to  prove  express  malice  and 
the  want  of  probable  cause,  the  defendant  is  at  liberty  to  prove  that 
the  fact  was  true,  or  give  any  other  evidence  to  show  probable  cause 

under  the  general  issue,  without  a  special  justification. 
[  *104  ]    For  this  is  merely  to  repel  the  proof  which  is  *necessary 

to  sustain  the  plaintiff's  case ;  thus,  in  an  action  for  slan- 
der of  title,  where  the  slander  consists  in  alleging  that  the  plaintiff 
had  encroached  on  his  landlord's  land,  it  was  held,  that  the  defend- 
ant was  at  liberty  to  prove  that  encroachments  had  in  fact  been 
made  (o). 

(o)    Watson  v.  Reynolds,  1  M.  &  M.  1,     Pitt  v.  Donovan,  1   M.  &  S.  639.     Supra, 
and  see  Hargreave  v.  Le  Breton,  4  Burr.     vol.  I.  320.' 
2422.     Smith  v.   Spooner,  3  Taunt  246. 


CHAPTER  III. 


Proceedings  after  Verdict. 

[  *105  ]  *  Where  the  situation  in  which  the  defendant  was  act- 
ing at  the  time  of  speaking  the  words,  or  publishing  the 
libel,  was  such  as  to  rebut  the  implication  of  malice,  and  no  express 
malice  was  proved,  the  court  will,  after  a  verdict  for  the  plaintiffs 
grant  a  new  trial  (a)  ;  and  this,  even  though  the  defendant  knew  that 
what  he  said  was  not  strictly  true,  provided  the  variation  from  the 
truth  be  immaterial  to  the  interest  stated  to  have  been  affected  (6). 
But  where  the  false  assertion  of  the  defendant  is  material,  no  new 
trial  will  be  granted,  though  the  defendant  had  an  interest  in  the 
subject  matter  affected  (c). 

Where  the  damages  are  so  outrageous  as  to  induce  a  strong  pre- 
sumption of  partiality  in  the  jury,  a  new  trial  will  be  granted  in  an 
action  for  slander,  as  well  as  in  other  cases,  though  in 
*106  ]    such  an  action  "the  amount  of  the  loss  sustained  from  the 
injurious  act  depends  upon  circumstances  of  all  others 
the  most  appropriate  for  the  calculation  and  assessment  of  a  jury  [1]. 
In  the  case  of  Lord  Townsend  v.  Dr.  Hughes  (d),  which  was  an 
action  for  scandalum  magnatum,  the  words  were,  "  He  is  an  un- 

(a)  See  the  observations  of  the  Court  in         (c)  See  Smith  v.  Spooner,  vol.  i.  p.  317. 
Bromage  v.  Prosser,  4  B.  and  C.  -17.  (,/)  2  Mod.  150. 

(b)  4  Burr.  2422. 


[1]  In  Coleman  v.  Soulhtrick,  9  Johns.  It.  51,  Chief  Justice  Kknt,  in  an  action  frr 
libel  said,  "  The  question  of  damages  was  within  the  proper  and  peculiar  province  of  the 
jury.  It  rested  in  their  sound  discretion  under  all  the  circumstances  of  the  case,  and 
unless  the  damages  are  so  outrageous  as  to  strike  every  one  with  the  enormity  end  in- 
justice of  them,  and  so  as  to  induce  the  court  to  believe  that  the  jury  must  have  acted 
from  prejudice,  partiality  or  corruption,  we  cannot  consistently  with  the  precedents, 
interfere  with  the  verdict.  It  is  not  enough  t<>  say  that  in  the  opinion  of  the  court  the 
damages  are  too  high,  and  that  we  would  have  given  much  less.  It  is  the  judgment  of 
the  jury  and  not  the  judgment  of  the  court  which  is  to  assess  the  damages  in  actions  for 
personal  torts  and  injuries.  See  also  Sovthwick  v.  Stevens,  10  Johns.  R.  143;  Coffin 
v.  Coffin,  4  Mass.  R.  1;  .Veal  v.  Lewis,  2  Bay's  R.  204. 


106  CIVIL  REMEDY: 

worthy  man,  and  acts  against  law  and  reason."  The  jury  found  a 
verdict  for  the  plaintiff  with  £4000  damages.  A  new  trial  was 
moved  for  on  these  grounds : 

1.  Because  the  witnesses  who  proved  the  words  were  not  per- 
sons of  credit,  and  that,  at  the  time  when  they  were  alleged  to  be 
spoken,  many  clergymen  were  in  company  with  the  defendant,  and 
heard  no  such  words  spoken. 

2dly.  Because  one  of  the  jury  confessed  that  they  gave  such 
great  damages  to  the  plaintiff,  not  that  he  was  damnified  so  much, 
but  that  he  might  have  the  greater  opportunity  to  show  himself 
noble  in  the  resisting  of  them. 

3dly.  (Which  was  the  principal  reason,)  because  they  were  ex- 
cessive. 

North,  C.  J.  and  Wyndham  and  Scroggs,  Justices,  were  of  opin- 
ion, that  no  new  trial  ought  to  be  granted,  that  in  a  civil  action, 
where  the  words  themselves  are  actionable,  without  an 
[  *107  "  averment  of  special  damage,  the  jury  ought  to  take  *into 
consideration  the  whole  of  the  damage  which  the  party 
might  sustain,  since  he  could  not  bring  a  fresh  action  ;  that  it  was  im- 
possible for  the  court,  to  tell  what  value  to  set  upon  the  honor  of 
the  plaintiff;  that  the  jury  were,  by  law,  judges  of  the  damages  ; 
and  that  it  would  be  very  inconvenient  to  examine  upon  what  ac- 
count they  gave  their  verdict. 

Atkins,  J.  dissented  from  his  brethren,  conceiving  that  the  court 
ought  to  compare  the  words  with  the  damages,  and  to  consider 
whether  they  bore  any  proportion.  He  also  cited  the  case  of  Gun- 
ston  v.  Wood,  where  the  plaintiff,  in  an  action  on  the  case  for  call- 
ing him  a  bankrupt,  recovered  £1500  damages;  and  the  court 
granted  a  new  trial,  because  the  damages  were  excessive. 

In  the  same  case  it  was  said  by  Scroggs,  J.  that  had  the  jury 
given  but  one  penny  damages,  the  plaintiff  could  not  have  obtained 
a  new  trial  in  hopes  to  increase  them. 

When  the  plaintiff's  title  to  recover  does  not  appear  perfect 
upon  the  face  of  the  record,  the  defendant  may  take  his  objection, 
either  by  moving  in  arrest  of  judgment  within  the  usual  time,  or 
by  bringing  a  writ  of  error. 

It  has  already  been  seen  what  are  the  rules  to  be  observed  in  the 

construction  of  the  defendant's  expressions ;  that  they  are  to  be 

taken  according  to  their  plain  and  obvious  meaning,  and 

[  *108  ]    in  the  *sense  in  which  the  hearers  or  readers  understood 

them. 


PROCEEDINGS  AITKR  VERDICT.  108 

After  a  verdict  for  the  plaintiff,  by  which  the  defendant's  act, 
meaning,  and  intention,  have  been  ascertained  to  correspond  with 
the  statement  upon  the  record,  the  courts  will  nol  listen  to  trivial 
exceptions,  but  require  the  party  objecting  to  poinl  out  (c)  a  sub- 
stantial objection  upon  the  face  of  the  proceed  in 

And,  in  general,  where  words  may  be  taken  in  a  double  sense, 
the  court,  after  a  verdict,  will  always  construe  them  in  that  sense 
which  may  support  the  vcrdid  (/"). 

Where  there  are  several  counts  in  the  declaration,  and  entire 
damages  are  given,  if  one  count  be  defective,  judgment  must  be  ar- 
rested for  the  whole,  since  it  is  impossible  lor  tic  court  to  appor- 
tion the  damages,  and  to  say  what  abatement  ought  to  be  made  in 
respect  of  the  vicious  count  (<r)  [1]. 

And  the  same  rule  holds  in  case  one  count  in  tin?  declaration  con- 
tain words  averred  to  have  been  spoken  at  different  times,  some  of 
which  are  not  actionable.  As,  if  at  one  time  the  defend- 
ant call  *the  plaintiff  "  traitor,"  and  at  another  time  [  *109  ] 
"  arrant  knave  and  cozener  ;"  and  the  plaintiff  allege  (//) 
the  words  to  have  been  spoken  at  different  times,  as  several  causes 
of  action,  if  the  jury  assess  the  damages  generally,  judgment  will 
be  arrested. 

But  if  actionable  words  be  averred  to  have  been  spoken  at  the 
same  time  with  others  not  actionable,  the  latter  are  considered  (i)  as 

(e)  See   the   opinions  of  Lord  Eller.bo-  (g)  Holt  v.  Scholefield,  6  T.  R.  694. 

rough.  C.  J.;  Le   Blanc,  J.;  Lords  Mans-  (h)  Cro.  Eliz.  32'J.     Cro.  Car.  236,  237, 

field,  C.  J.;  Parker,  C.  J. ;  Lord  Holt,  C.  J.  238.     2  Wils.  185. 

Pratt,  J.;  Duller,  J.  and  De  Grey,  C.  J.  as  (,)  3    Wils.     185.     Lloyd    v.    Morris, 

cited  above,  vol.1,  p.  G4,  &c.  willes  Rep.  -143.     Roll.   Ab.  570.     Moor. 

(/)  8  Mod.  240,  14o?  708.     Cro.  Eliz.  328,  788.  1  Buls.  37. 

[1]  The  law  is  held  otherwise  in  New- York  where,  if  the  judge  certifies  that  the  evi- 
dence applied  only  to  the  good  counts,  the  plaintiff  may,  on  payment  of  costs,  enter 
judgment,  Slojl'm,/  v.  (Irten,  1  Johns.  R.  505;  and  even  where  the  judge  certifies  that 
the  evidence  applied  as  well  to  the  good  as  the  defective  counts,  the  judgment  will  not  he 
arrested,  but  the  verdict  will  he  amended  so  as  to  apply  it  to  the  good  counts.  In  this 
the  court  here  not  only  concurred  with  Lord  Mansfield  in  his  condemnation  of  the  old 
rule,  as  will  be  seen  in  Grunt  v.  Jhtle,  Bongl.  729,  hut  went  further  and  reftued  t"  be 
bound  by  it.     See  Union  Turnjnke  Co.  v.    Jenkins,  1  Ga  (\>oper  v.  Bissell, 

15  Johns.  R.  318;  Sayrc  v.  Jcirrtt,  12  Wendell,  186,  The  same  rule  prevails  in  South 
Carolina,  where  the  court  say  that  they  do  net  oonour  with  the  King's  Benofa  of  Eng- 
land on  this  subject,  JVeal  v.  Lewis,-  Bay,  204,  and  Hojjs.  Wilson,  1  Not!  and 
McCord,  216.  So  in  Pennsylvania,  the  court  directs  the  verdict  to  be  entered  upon  the 
good  counts;  Kennedy  v.  Lowry,  1  Binney,  8975  u,lt  l'''s  oaooot  be  done  ou  a  writ  of 
error:  Shafer  v.  Kintzer,  1  Binney,  687;  Cooper  v.  Bissell,  15  Johns.  R.  318.  See 
note  [1)  p.  112,  infra. 

40* 


100  CIVIL  REMEDY : 

laid  merely  in  aggravation.  If  the  declaration  consist  of  several 
counts,  in  one  of  which  the  words  are  not  actionable,  and  no  special 
damage  be  averred,  or,  supposing  it  to  be  averred,  the  finding  of  the 
jury  as  to  the  special  damage  be  for  the  defendant,  and  as  to  the  rest 
generally  for  the  plaintiff,  the  judgment  would  be  erroneous,  and 
might  be  avoided  by  motion,  or  reversed  by  writ  of  error  (&). 

Where,  therefore,  there  is  any  doubt  as  to  the  validity  of  any 
one  count,  (/),  it  is  a  matter  of  prudence  to  have  the  damages  as- 
sessed severally,  or  to  take  a  verdict  upon  the  other  counts  only. 
In  (m)  Rich  v.  Holt,  the  words  laid  down  as  spoken  of 
[  *110  ]    the  plaintiff  at  one  time  were,  "  You  *are  a  paltry  law- 
yer, and  used  to  play  on  both  hands  ;"  at  another,  "  He 
is  a  furtherer  and  maintainer  of  felonies."     The  defendant  as  to  all 
the  words,  except  those  in  italics,  pleaded  not  guilty,  and  as  to 
those  a  justification.     The  plaintiff  replied  de  injuria  propria,  SfC. 
The  jury,  upon  the  first  issue,  found  the  whole  of  the  words,  and 
assessed  damages  for  the  whole ;  they  likewise  found  the  second  is- 
sue for  the  plaintiff,  assessing  separate  damages.     The  court,  on 
motion  in  arrest  of  judgment,  decided  that  the  words,  "  You  are 
a  paltry  lawyer,"  were  not  actionable,  but  held  that  the  plaintiff 
was  entitled  to  judgment  on  the  first  issue.     It  should  seem,  how- 
ever," that  the  plaintiff  was  not  entitled  to  judgment  under  the  first 
assessment,  supposing  the  decision  to  have  been  correct,  that  the 
words,  "  You  are  a  paltry  lawyer,"  were  not  actionable. 

For  the  words  to  be  considered  under  the  first  issue  of  not  guilty, 
were  the  two  sets,  "  You  are  a  paltry  lawyer,"  and  "  He  is  a  furth- 
erer and  maintainer  of  felonies,"  the  words  in  italics  not  coming 
under  the  consideration  of  the  jury,  since  they  were  confessed  ; 
the  damages  under  the  first  assessment  were,  therefore,  partly  given 
for  the  words,  "  You  are  a  paltry  lawyer,"  which  were  held  not 
actionable. 

It  is  said  to  be  the  practice  in  the  Court  of  Common 
*111  ]    Pleas,  to  award  a  venire  de  novo  where  judgment  is  ar- 
rested in  such  case,  upon  payment  of  costs,  in  order  that 
the  plaintiff  may  sever  his  damages  (n).     But  in  the  case  of  Holt 
v.  Scholejield  (o),  in  the  King's  Bench,  a  venire  de  novo  was  re- 
fused. 

(fe)  See  the  cases  2  Will.  Saund.  171,  d.         (o)  6  T.   R.   61.     Sed  vid.  Eddows  v. 
(Z)  Burnet  v.  Wells,  12  Mod.  420.  Hopkins,  Doug.  376. 

(m)  Cro.  J.  267. 

(ti)  2    Will.  Saund.   171,   d.     Barnes, 
478,  480. 


PROCEEDINGS  AFTER  VERDICT.  Ill 

In  the  case  of  Beevor  v.  Hides  (/>),  Bathurst,  Justice,  expressed 
an  opinion,  that  where  the  words  in  one  count  were  not  actionable, 
yet  that  the  postea  might  be  amended,  and  a  verdict  as  to  those 
words  entered  for  the  defendant,  upon  the  Judge's  certifying  that 
no  evidence  was  given  of  them  at  the  trial. 

Hut  Lord  Camden  said  it  would  be  very  dangerous,  after  a  ver- 
dict of  twelve  men  recorded  by  the  Court,  to  refer  to  the  Judge's 
notes  in  order  to  alter  it,  and  he  thought  there  was  no  precedent  of 
such  a  case,  and  that  the  verdict  could  not  be  varied. 

The  general  practice  however  is,  where  general  damages  have 
been  given,  and  it  appears  that  the  plaintiff  is  entitled  to  recover 
upon  one  count,  though  not  upon  others,  either  to  amend  the  postea, 
which  is  done  where  it  clearly  appears  that  no  evidence 
was  given  on  the  defective  'counts  (7),  or  by  awarding  [  'Hi!  ] 
a  v.  f.  de  novo,  where  such  evidence  has  been  given,  in 
order  that  the  plaintiff  may  ascertain  to  what  damages  he  is  enti- 
tled for  so  much  of  his  cause  of  complaint  as  will  support  damages. 
It  does  not  distinctly  appear,  upon  what  principle  actions  for  slan- 
der form  an  exception  to  the  general  rule  [1]. 

(p)  2  Wils.  300.  and  it  is  done  by  the  judge  who  tried  the 

(q)  This  is  now    the   ordinary   practice,     cause  upon  summons  at  chambers. 

[1]  See  Hopkins  v.  Beedle,  1  Caine3,  347;  Lyle  v.  Clason,  Id.  583;  Livingston  v. 
Rogers,  id.  587. 


CIIAiTER  IV. 


Of  Costs. 

[  *113  1  *By  the  21  Jac.  1.  c.  16,  it  is  enacted,  that  "  in  all 
actions  upon  the  case  for  slanderous  words,  to  be  sued  or 
prosecuted  in  any  of  the  courts  of  record  at  Westminster,  or  in  any 
court  whatsoever,  that  hath  power  to  hold  plea  of  the  same  ;  if  the 
jury,  upon  the  trial  of  the  issue  in  such  action,  or  the  jury  that  shall 
inquire  of  the  damages,  do  find  or  assess  the  damages  under  forty 
shillings,  then  the  plaintiff  or  plaintiffs  in  such  action  shall  have  and 
recover  only  so  much  costs  as  the  damages  so  given  or  assessed 
amount  unto,  without  any  further  increase  of  the  same  ;  any  law, 
statute,  or  usage,  to  the  contrary  notwithstanding."  [1] 

This  statute,  it  has  been  held,  does  not  extend  to  actions  of  scan- 
dalum  magnatum,  nor  to  those  where  the  special  damage  is  the  gist 
of  the  action,  as  in  case  of  slander  of  title  (a),  nor  to  actions  for 

libel  (6). 
[  *114  ]  *But  where  the  words  are  in  themselves  actionable, 
the  case  is  within  the  statute,  though  special  damage  be 
averred  ;  for  the  plaintiff  is  at  all  events  entitled  to  a  verdict  for 
the  actionable  words,  without  proving  the  special  damage ;  and  if 
he  were  in  such  case  entitled  to  costs,  where  the  damages  were  un- 
der forty  shillings,  the  statute  might  in  all  cases  be  evaded  by  a  sug- 
gestion of  special  damage.  This  construction  is.  however,  not  free 
from  inconvenience  ;  since  where  special  damage  has  actually  ac- 
crued, the  circumstances  of  the  words  being  in  themselves  actionable, 
may  operate  to  the  plaintiff's  disadvantage,  and  he  may  be  placed 

(«)  2   Bl.   10G2.     2    Ld.  Raym.    1588.         (b)  Hall  v.  Warner,  T.  24  G.    3  Tidd. 
Prac.  Reg.  111.     Cro.  Car.  1 10.  Jon.  196..      861 .  Sed  vide  note  (1)  supra. 
2Ld.  Kay.  931.     1  Salk.  206.  7  Mod.  129. 
Willes,  438.     1  Barnes,  132.  2  H.  B.  531. 
3  Burr.  1688.     1  Str.  645. 

[1]  In  New- York,  in  an  action  for  slanderous  words  or  for  a  libel,  brought  in  the 
Supreme  Court,  unless  the  plaintiff  obtained  a  verdict  for  a  sum  exceeding  fifty  dollars, 
he  recovers  no  more  costs  than  damages,  2  R.  S.  509,  sec.  6. 


COSTS.  114 

in  a  worse  situation,  by  that  very  presumption  of  law  which  was  in- 
tended for  his  advantage. 

And  where  it  clearly  appears,  as  by  a  special  verdict  and  separate 
assessment,  that  the  special  damage  was  actually  <•,  1  by  the 

jury,  it  seems  reasonable  that  the  plaintiff  should  have  full  co 
though  the  damages  do  not  reach  the  statutable  limit  (c). 

Where  the  words  are  actionable,  ami  other  matter  likewise  ac- 
tionable is  stated  as  a  distinct  injury,  and  not  as  a  mere  cousequence 
of  the  words,  the  plaintiff  is  entitled   to  full  costs;  as 
•where  the  declaration,  after  stating  the  words  imputing    [  *115  ] 
felony,  averred  that  the  defendant  procured  the  plaintiff 
to  be  imprisoned  (//). 

"Where  there  are  different  counts  in  the  declaration,  some  contain- 
ing words  not  actionable,  and  others  containing  actionable  ones,  and 
special  damages  be  laid  referring  to  all  the  counts,  then  the  plaintiff 
will,  under  a  general  verdict,  be  entitled  to  full  costs.  For  some 
part  of  the  damages  assessed  must  have  been  given  in  respect  to  the 
consequential  damage  (e). 

The  statute   extends  to  damages  found  under  a  writ  of  inqui- 

ry  (/)• 

It  has  been  held  that  the  statute  extends  to  inferior  courts,  which 

hold  pleas  to  a  less  amount  than  forty  shillings  only  («•).  But  by 
the  st.  58  G.  III.  c.  30,  s.  2,  in  all  actions  for  slanderous  words,  in 
any  court  which  hath  not  jurisdiction  to  hold  plea  to  the  amount  of 
forty  shillings  in  such  suits,  if  the  jury  assess  the  damages  under 
thirty  shillings,  the  plaintiff  shall  recover  only  so  much  costs  as  the 
damages  so  given  or  assessed  shall  amount  to,  without  further  in 
crease. 

The  22d  and  23d  C.  2,  c.  9,  is  very  general  in  its 
terms,  which  comprehend  "all  personal  actions."     *By        '  1 1  * »  ] 
this  statute  it  is  enacted,  that  in  such  actions,  wherein 
the  judge  at  the  trial  of  the  cause  shall  not  find  and  certify  under 
his  hand,  upon  the  back  of  the  record,  that  an   assault  and  battery 
Was  sufficiently  proved  by  the  plaintiff  against  the  defendant,  or  that 
the  freehold  or  title  of  the  land  mentioned  in  the  declaration   was 
chiefly  in  question,  the  plaintiff  incase  the  jury  shall  find  the  dam 
to  be  under  the  value  of  forty  shillings,  shall  not  recover  more  costs 

(<f)  1  Vent.  93.     1   Mod.  31.     2  Keb.  (c)  2  H.  B.  531. 

589.  (/)  2  8tr.  984. 

{d)  Str.  646.  Ld.  Ray.  1688.     Cro.  Car.  (y)  Tidd'a  Prao.  '.'7-">.  7th  ed.    1   Ld. 

163.     Cro.  Car.  307.  Ray-  181.     Hull,  on  Costs,  38. 


116  CIVIL  REMEDY: 

than  damages.  At  first  it  seems,  that  the  statute  was  held  to  ex- 
tend to  all  personal  actions  (/t)  ;  but  it  appears  to  be  now  settled 
that  it  is  confined  to  actions  of  assault  and  battery,  and  for  local 
trespasses,  wherein  it  may  be  possible  for  the  Judge  to  certify,  that 
the  freehold  or  title  to  the  land  was  chiefly  in  question  (/i). 

This  statute,  therefore,  does  not  affect  the  present  class  of  actions. 

And  since  the  case  of  slander  is  not  considered  to  be  within  the 
latter  statute,  a  justification  does  not  entitle  the  plaintiff  to  full  costs, 
where  the  damages  are  below  forty  shillings  (i). 

(h)  2  Keb.  849.    3  Keb.  121,  247.  (i)  Halford    v.    Smith,    4   East,   566. 

(h)  See  Tidd's  Prac.  (4  Edn.)  861  where    Barnes,  128.     2  Wils.  158. 
the  authorities  on  the  subject  are  collected. 


CHAPTER    V. 


Of  the  Writ  of  Prohibition. 

*A  prohibition  to  the  Ecclesiastical  Court  is  grounded     [  *117  ] 
either  upon  a  defect  in  their  jurisdiction  or  upon  some 
irregularity  in  the  course  of  their  proceedings. 

The  power  of  these  courts,  in  cases  of  defamation,  was  expressly 
recognized  by  13  E.  1,  St.  4.  "  In  cause  of  defamation,  it  hath  been 
granted  already,  that  it  shall  be  tried  in  a  Spiritual  Court,  when 
money  is  not  demanded,  but  a  thing  done  for  punishment  of  sin  ;  in 
which  case  the  spiritual  judge  shall  have  power  to  take  knowledge, 
notwithstanding  the  king's  prohibition." 

"Whence  it  appears  that  these  courts,  before  the  passing  of  the 
statute,  had  the  same  jurisdiction  ;  and  also  that  the  extent  of  the 
jurisdiction  was  to  deal  out  punishment  pro  salute  animoe  (a)  and 
not  to  award  any  temporal  compensation  in  the  way  of  damages  for 
loss  of  character  {b~).  And  the  latter  position  appears 
still  more  clearly  *from  the  statute  of  Articuli  Cleri  (c)  ;  [  *118  ] 
which  enacts,  that  "  In  defamations,  prelates  shall  correct, 
the  king's  prohibition  notwithstanding;  first  enjoining  a  penance 
corporal,  which,  if  the  offender  will  redeem,  the  prelate  may  freely 
receive  the  money,  though  the  king's  prohibition  be  showed." 

Under  these  statutes  it  has  been  held,  that  no  suit  is  maintainable 
in  the  Ecclesiastical  Courts  for  any  slander  (d)  not  of  spiritual 
cognizance.  So  that  an  imputation  of  perjury  is  not  a  ground  for 
proceeding  in  the  Spiritual  Court. 

In  the  instance  cited,  the  party  has  his  remedy  by  action  at  Com- 
mon Law;  but  provided  the  slander  do  nut  impute  any  offence 
cognizable  by  the  Spiritual  Court,  no  punishment  can  be  inflicted  for 
it  by  such  court,  though  the  slander  should  not  be  a  ground  of  ac- 
tion at  Common  Law  (c).     Thus  a  suit  was  instituted  in  the  Spiritual 

(«)  2  Inst.  492.  (d)  2  Burn.  Boo.  L.  120.  Ld.  Ray.  212 

(A)  lb.  397.  Godb.  517.  2  Salk.  892.  11  Mod.  112. 

(e)  9  Edw.  2,  c.  4.  (0   2  Ins.  493. 


118  CIVIL  REMEDY  : 

Court  for  calling  the  plaintiff  a  false  knave,  and  a  prohibition  was 
granted.  And  it  was  said  (/),  that  though  these  words  do  not 
imply  any  offence  of  which  the  temporal  law  takes  cog- 
f  *119  ]  nizance,  yet  being  also  not  of  spiritual  cognizance,  *the 
Temporal  Courts  will  grant  a  prohibition  that  the  Eccle- 
siastical Courts  (g-)  may  not  exceed  their  jurisdiction. 

And  the  same  rule  holds  though  the  words  be  spoken  of  an  eccle- 
siastical person.  The  words  spoken  of  a  parson  were,  "  He  (Ji) 
has  no  sense  ;  he  is  a  dunce  or  blockhead,  and  deserves  to  have  his 
gown  stripped  over  his  ears."  And  it  was  held  that  the  defendant 
was  not  punishable  in  the  Spiritual  Court ;  for  a  parson  is  not  pun- 
ishable in  that  court  for  being  a  knave  or  a  blockhead  more  than 
any  other  man  ;  and  it  was  said,  that  if  the  parson  should  be  de- 
prived for  want  of  learning,  he  must  bring  his  action  at  Common 

Law  (t). 

So  it  has  been  held  that  to  call  a  dean  "  a  knave"  was  not  suable 

in  the  Spiritual  Court. 

But  where  words  (Je)  spoken  of  a  parson  impute  that  which,  if 
true,  would  subject  him  to  censure  in  the  Ecclesiastical  Court,  he 
is  entitled  to  sue  there. 

•Where  words  of  spiritual  cognizance   are  coupled  with  terms  of 

abuse  which  are  not  in  themselves  actionable  in  the  tem- 

T  *120  ]     poral  courts,  no  prohibition  will  be  granted  (7)  ;  so  *that 

no  prohibition  lies  m  a  suit  for  the  words,  "  he  is  a  cuck- 

oldy  knave  (m)  ;"  and  the  rule  is  the  same  though  it  should  be 

suggested  that  the  words  were  spoken  through  heat  and  passion(w). 

Where  the  words  themselves  are  of  mere  spiritual  cognizance, 
but  special  damage  ensues,  for  which  an  action  is  brought  in  a  tem- 
poral court,  it  seems  that  no  prohibition  is  grantable. 

In  the  case  of  Evans  v.  Brown  (o),  where  the  words  were  of 
mere  spiritual  cognizance,  a  prohibition  was  moved  for  upon  a  sug- 
gestion that  the  plaintiff  below  had  brought  an  action  at  law  for  the 
words,  grounded  upon  special  damage  sustained  by  reason  of  the 
defendant's  speaking  them.  It  was  contended,  that  this  was  like 
the  case  where  one  calls  a  woman  a  whore  and  thief:  in  that  case 
she  shall  not  have  .an  action  in  the  Ecclesiastical  Court  for  the 

(02Salk.692. 
Y'  2  Ing  695  (m)  Gobbet's  case,  Cro.  Car.  339.  Golds. 

(h)   Coxeter  v.  Parsons,  Salk.  692.  172. 

(i)  Holt.  R.  593.     JVelson  v.  Hawkins,         (n)  L<L  Ray.  1136. 
Dean  of  Chichester.  (°)  Ld.  Ray.  1101. 

(&)   Clark  v.  Price,  11  Mod.  208. 


PROHIBITION.  12o 

words,  though  she  might  for  the  word  whore  :  because  it  being 
joinc. 1  with  th  ■  word  thief,  an  action  lies  at  Common  Law  for 
the  words.  That  in  Mich  case,  the  words  could  not  be  split,  and 
an  action  brought  at  law  for  the  word  thief, and  a. -nit  in  the  Eccle- 
siastical Court  for  the  word  whore  ;  bo  that  here,  though 
the  words  are  properly  suable  for  in  the  *Ecclosiastical  [  l_'l  j 
Court,  yet  a  special  damage  attending  the  speaking  of 
them,  by  which  means  an  action  lies  at  Common  Law  for  the 
words,  they  shall  not  proceed  for  the  speaking  in  the  Ecclesiastical 
Court.     But  the  court  refused  to  grant  a  prohibition. 

But  it  seems  that  in  general,  the  Spiritual  Courts  have  not,  in 
case  of  defamation,  any  concurrent  jurisdiction  with  the  courts  of 
Common  Law  •  so  thai  if  the  same  words  impute  a  spiritual  and  tem- 
poral offence,  the  jurisdiction  of  the  former  court  ceases.  Hollii 
head  prayed  a  prohibition  to  stay  a  suit  in  the  Spiritual  Court  for 
defamation.  The  words  were,  "Thou  art  a  bawd,  and  1  will  prove 
thee  a  bawd  ;"  and  because  these  words  were  properly  determin- 
able in  the  Spiritual  Court,  and  no  action  lies  for  them  at  Common 
Law,  the  prohibition  was  denied.  But  (/?)  it  was  held,  that  for 
saying,  "  Thou  keepest  a  house  of  bawdry,"  this  being  matter  de- 
terminable at  the  Common  Law  by  indictment,  suit  shall  not  lie  in 
the  Spiritual  Court. 

If  a  man  who  has  lands  by  descent  sue  in  the  Spiritual  Court  for 
words  of  bastardy,  a  prohibition  lies  ;  for  the  words  tend  to  the 
temporal  (q)  disinheritance  of  the  plaintiff. 

•But  it  seems  that  the  mother  would,  in  such  case,  be  [  *122  ] 
entitled  to  sue  in  the  Spiritual  Court,  for  the  imputation 
upon  her  own  chastity  contained  in  such  a  charge  of  bastardy  ; 
since,  with  respect  to  herself,  the  slander  is  of  mere  spiritual  cog- 
nizance; and  even  where  the  mother  and  son  jointly  preferred  their 
libel  for  Mich  words,  a  prohibition  was  denied  (  r  ). 

Th  •]  to  be  a  stronger  reason   why  a  man  should  not  sue 

for  words  of  bastardy  than  the  on-  d  in  Ilolle,  namoly,  that 

he  is  not  punishable  for  being  a  bastard. 

Where  the  same  words  imputed  incontinency,  and  an  infection 
with  the  venereal  disease  to  the  plaintiff,  who  sued  in  the  Spiritual 
Court,  a  prohibition  was  granted  (*)  ;  although  the  first  words' were 
of  ecclesiastical  cognizance. 

(/>)  Cro.  Car.  22','.  Str.  linn.    |  ,,,.  r;ir.         (</)  -  Boll  Ab.  292.     Qu.  et  »id.  vol.  I. 
329.  Cap.4. 

(r)  Ld.  Hay.  1287.     11  Mod.  117.  (s)  Ld   R«J  410. 

Vol.  II.  11 


122  PROHIBITION. 

So  where  words  of  (/)  incontinency  were  imputed  at  the  same 
time  with  others  of  felony,  a  prohibition  was  moved  for  and  granted 
for  the  whole. 

If  part  of  the  icords  be  actionable,  it  seems  that  a  prohibition  will 
be  granted  for  the  whole,  though  the  others  charge  a  spiritual  of- 
fence.     As  where  the  defendant    said,  "You  are  a  whore  and 

thief  (m)." 
[  *123  ]  *Where  words  are  of  temporal  cognizance  from  the 
custom  of  a  particular  place,  a  prohibition  will  be  grant- 
ed. As  where  words  of  incontinence  are  imputed,  to  a  woman  in 
London,  no  suit  is  maintainable  in  the  Spiritual  Court  (a;).  If  it 
appear,  however,  upon  suggestion  supported  by  affidavit,  or  upon 
the  face  of  the  libel  itself,  that  the  parties  did  not  live  within  the 
scope  of  the  local  jurisdiction,  no  prohibition  will  be  allowed. 

Thus,  in  the  case  of  W.  Johnson  v.  Bewick  (y)  the  words  were, 
"  Thou  art  a  whore,"  and  the  custom  of  London  was  suggested  ; 
but  it  appeared  on  the  face  of  the  suggestion  that  neither  of  the 
parties  lived  within  the  jurisdiction  of  London.  It  was  urged,  that 
it  would  be  hard  to  deprive  the  defendant  of  the  power  of  punish- 
ing the  plaintiff,  for  having  spoken  those  malicious  and  defamatory 
words  in  a  court  where  she  may  proceed,  to  drive  her  to  another 
court  where  she  cannot  proceed,  the  plaintiff  living  out  of  the  juris- 
diction of  the  court.  And  of  that  opinion  was  the  whole  court ; 
and  Holt.  C.  J.  said,  that  if  in  such  case  a  prohibition  were  grant- 
ed, it  would  give  license  to  all  the  market-women,  when  they  were 
in  London,  to  defame  their  neighbors,  without  fear  of  punishment. 

Where  a  prohibition  is  prayed,  grounded  upon  a  sup- 
[  *124  ]     posed   *want  of  jurisdiction  in  the  Spiritual   Court,  the 
defect,  if  it  be  not  apparent  upon  the  face  of  the  pro- 
ceedings, must  be  verified  by  affidavit  (2). 

In  the  case  of  Argyle  v.  Hunt  (a),  a  prohibition  was  moved  for 
on  the  ground  of  a  defect  of  jurisdiction  appearing  on  the  face  of 
the  libel,  where  it  was  stated,  that  the  words,  which  were  of  incon- 
tinency, had.  been  spoken  in  London.  But  the  court  said  that  they 
could  not  judicially  take  notice  of  the  custom,  without  an  affidavit. 
But  in  the  case  of  Power  v.  Shaw  (6),  a  rule  to  show  cause  was 

(i)  Legatee.  Wright,  H.  10  G.  2.  Driver   v.    Driver,  Hill.   12    G.   II.  And. 

(u)  2  Rol.  297.  1  Sid.  401.     3  Mod.  74.  301. 

(i)  Ld.  Ray.  711.     Str.  188.  (a)  Str.  187. 

(y)  Ld.  Ray.  711.  (4)   1  Wils.  62. 

(r)  M.  12.  G.  II.     Hinds  v.  Thompson, 


PROHIBITION.  124 

granted  why  prohibition  should  not  go  for  calling  a  woman  strumpet, 
in  Bristol,  though  there  was  m>  affidavit  of  the  custom. 

It  seems,  generally,  that  any(c)  words  from  which  the  intention 
to  impute  whoredom  ran  be  collected,  will  td  for 

prohibition. 

The  Spiritual  Oouii  is  bound   to  allow  the  defendant  the  advan- 
of  any  justification  which  would  have  availed  him  at  Common 
Law  (d). 

The  plaintiff  proceeded  in  the  Spiritual  Court  'for  the     [  *125  | 
words,    "You   had    a   bastard  (<  >."       I     •   defendant 
pleaded  that  the  plaintiff  had  be  I  for  this  hav- 

ing a  bastard,  and  ordered  to  keep  the  bastard,  at  I 
Norwich.     Notwithstanding  this,  the  court  proceeded,  an  I 
fondant,  in  the  Spiritual  Court,  move  1  for  a  prohibiti  - 1 i n -_r 

the  Bpecial  matter,  to  which  th  i  oth  t  party  demurred.     It  was 
judged  that  the  prohibition  should  stand  :  for,  being  sentenced  to  Wi- 
the reputed   father  by  the  Justices  of  the  Peace,  which   is  by  the 
authority  of  the  Statute  Law.  that  sentence  could  not  beimpe 
in  the  Spiritual  Court,  or  elsewhere  ;  and  all  are  concluded  to  say 
the  contrary  until  it  be  reversed. 

By  the  1st  Edw.  III.  st.  2.  c.  11, "  No  suit  .-hall  be  made  in 
the  Spiritual  Court  against  indictors.  The  Commons  d<>  grievously 
complain,  that  when  divers  persons,  as  well  clerks  as  lay  people, 
have  been  indicted  before  sherilVs  in  their  turns,  and  after  th.-  in- 
quest procured  be  delivered  before  the  Justices,  after  their  deliver- 
ance they  do  sue  in  the  Spiritual  Court  against  such  indictors,  sur- 
mising against  them  that  they  have  defamed  them,  to  the  - 
damage  of  the  indictors,  wherefore  many  people  of  the  shire  be  in 

fear  to  indict  such  offenders  :   the  king  will,  that    in  BUch 

i,  every  man  that  feeleth  himself  aggrieved  the:-  j  *126  ] 

shall  have  a  prohibition  fram  id  in  the  <  iry  upon  his 

case." 

Though  the  statute  in  term-  comprehends  indictment-  before  sher- 
iffs in  their  turns  only  :  it  seems  that  it  eztonds  to  indictments  in  all 
other  court-,  and  to  all  witnesses  and  other-  who  have  affaire  in 
temporal  courts  (  /  ). 

By  the  st.  -1  (>.  111.  c.  -ll.no  suit  for  defamatory  word- -hall 
be  brought  in  any  of  tin-  Ecclesiastical  Courts, unless  the  -aim-  -hall 
be  commenced  within  six  calendar  months  from  the  time  when  Bach 
words  shall  have  been  uttered. 

(c)  Str.  471.  (•)  Cro.J.626.    9  B 

(d)  Com.  Dig.  tit.  Prohibition,  G.  11.  (/)   12  Co.  43. 


126  PROHIBITION. 

The  distinction  as  to  the  time  of  moving  in  prohibition  is,  that 
where  the  defect  alleged  is  extrinsic  of  the  libel  itself,  the  party- 
must  apply  before  sentence  in  the  Spiritual  Court ;  for  where  the 
Spiritual  Court  has  an  original  jurisdiction  which  is  to  be  taken 
away  upon  account  of  some  matter  arising  in  the  suit  there,  after 
sentence  the  party  shall  never  have  a  prohibition,  because  he  him- 
self hath  acquiesced  in  their  manner  of  trial,  which  is  a  waiver  of 
the  beneiit  of  a  Common' Law  trial.  But  if  the  defect  of  jurisdiction 
appear  upon  the  libel,  the  party  never  comes  too  late  (£•). 
[  *127  ]  *In  the  early  part  of  the  reign  of  Queen  Anne,  a  prohi- 
bition was  moved  for  to  stay  a  proceeding  in  the  court  of 
the  Earl  Marshal  against  the  defendant,  for  having  said  to  the  plain- 
tiff, who  was  a  knight,  "  You  a  knight  (//)  !  you  are  a  pitiful  fellow, 
and  an  inconsiderable  fellow,"  to  the  great  scandal  of  gentlemen  and 
of  the  order  of  knighthood.  From  the  judgment  given  by  Lord 
Holt  upon  this  occasion,  it  appears  that  a  prohibition  had  been  sent 
to  a  Court  of  Honor  some  years  before,  (though  it  had  then  been 
contended  that  under  the  st.  13  Rich.  II.  c.  2,  the  proper  mode  of 
resisting  any  encroachment  by  such  courts,  was  by  a  writ  from  the 
Privy  Council  to  restrain  them  ;)  since  in  all  cases  of  encroachments 
by  courts  of  inferior  jurisdiction,  the  proper  remedy  is  by  writ  of 
prohibition. 

With  respect  to  the  court  itself  to  which  the  prohibition  prayed 
for  was  to  be  sent,  it  appeared  that  it  had  been  held  before  the 
Constable  and  Marshal  till  the  18th  year  of  H.  8.  when  the  Consta- 
ble (i)  was  attainted  of  treason,  and  the  office  extinguished  ;  but 
that  the  pleas  relating  to  matters  of  law  had  since  been  held  before 
the  Earl  Marshal  only.  But  the  court  were  of  opinion, 
[  *128  ]  that  whatever  color  there  might  be  to  *hold  plea  of  some 
things  before  the  Marshal  alone,  there  was  no  pretence 
to  hold  plea  (&)  of  words. 

(#)  Jlrgyle  v.  Hunt,  Str.  187.  (k)  Several  instances  of  great  oppres- 

(h)   Chambers  v.  Jennings,  7  Mod.  125-     sion,  where  this  court  held  plea  of  words 
(i)  Stafford,  duke  of  Buckingham.  are  cited  iu  Hume  and  Ld.  Clarendon. 


CHAPTER    VI. 


Publications  against  Religion. 

'II  LYING  thus  considered  the  nature  and  extent  of  the     [  *129  J 
civil  remedy,  in   respect  of  malicious  and  injurious  com- 
munications, the  subject  is  next  to  be  regarded  in  reference  to  the 
interests  of  the  public. 

It  may  be  asserted  generally,  that  the  wilful  and  unauthorized 
publication  of  that  which  immediately  tends  to  produce  mischief  and 
inconvenience  to  society,  is  a  public  offence. 

The  present  branch  of  the  subject  may  be  considered, 

1st.  In  reference  to  the  essentials  which  constitute  the  offence. 

2ndly.  The  mode  of  prosecution  and  punishment. 

First,  in  reference  to  the  essentials  which  constitute  the  offence: 

These  regard — 

1st.  The  nature,  quality,  and  tendency  of  the  matter  published. 

2ndly.  The  act  of  the  party  concerned  in  the  publication. 

ordly.  His  motive  and  intention. 

4thly.  Collateral  circumstances. 

•First,  as  to  the  nature,  quality  and  tendency  of  the  [  *130  ] 
matter  published. 

The  offence  may  consist  in  the  tendency  of  the  communication  to 
weaken  or  dissolve  religious  or  moral  restraints,  or  to  alienate  men's 
minds  from  the  established  constitution  of  the  state,  or  to  engender 
hatred  and  contempt  of  the  king  or  his  government,  or  the  houses  of 
Parliament,  or  the  administration  of  public  justice,  or  in  general  to 
produce  some  particular  inconvenience  or  mischief,  or  to  excite  in- 
dividuals to  the  commission  ofbreaches  of  the  public  peace*,  or  other 
illegal  acts. 

Blasphemies  against  God  and  religion  may  be  regarded  spiritual- 
ly, as  acts  of  imbecile  and  impious  hostility  againsl  the  Almighty,  or 
temporally,  as  they  affect  the  peace  and  good  order  of  civil  society. 
It  is  in  the  latter  relation  only  that  BUCh  offences  are  properly  cogni- 
zable by  municipal  laws.  To  attempt  to  redress  or  avenge  insults  to 
a  supreme  and  omnipotent  Creator,  would  be  absurd  :  but  when  it  ie 
41* 


130 


CRIMINAL  DIVISION. 


considered  that  such  impieties  not  only  tend  to  weaken  and  under 
mine  the  very  foundation  on  which  all  human  laws  must  rest,  and  to 
dissolve  those  moral  and  religious  obligations,  without  the  aid  of 
which  mere  positive  laws   and   penal  restraints  would   be  ineffica- 
cious, but  also  immediately  tends  to  acts  of  outrage  and  vio-  (a) 


(a)  The  following  are  the  remarks  of  the 
learned  Michaelis,  on  the  question  -whether 
blasphemy    ought   to  be   punished   in   the 
;     temporal  courts — Michaelis  on  the  Mosaic 
Law,  vol.  4.  p.  491;  Smith's  Translation. 
With   regard,  then,  to  blasphemy,  is  it 
irrational,  barbarous,   and     superstitious, 
that  any  punishment  should  be  inflicted  on 
the  crimes  which  are  usually  comprehend- 
ed under  this  name  ?     Almost  all  nations 
have  accounted  it  just,  and  some  have  pun- 
ished such   crimes  with  extreme  severity. 
At   present,   however,   the    objection   that 
blasphemy  injures  not  God,  he   being  infi- 
nitely exulted  above  it,  is  trumpeted  abroad 
with  loud  approbation.     It  does  not,  indeed, 
appear  very  striking  to  me;  and  those  who 
make  it  would  seem  to  have  conceived  that 
the  intention  of  punishing  blasphemy  were 
to  procure  safety  to  God  :  that,  however, 
could  scarcely  have   been  the   unanimous 
idea  of  so  many  nations,   and  these,  too^ 
differing  so  widely  in  civilization,  climate 
and  religion ;  for  most  of  them  would  pro- 
bably have  conceived,  that   if  God  wished 
to  avenge  this  crime,  he  would  take  ven- 
geance at  his  pleasure,  and  would  not  want 
the  aid  of  human  laws  for  this  purpose. 

On  God's  account,  then,  punishments 
for  blasphemies  are  not  necessary ;  but  per- 
haps they  are  necessary  for  the  sake  of  our 
neighbor,  who,  if  he  believes  in  a  God,  or 
holds  his  religion,  whether  true  or  false,  to 
be  true,  always  feels  himself  extremely 
scandalized  by  them.  Nor  is  it  only  blas- 
phemy against  the  true  God  that  ought  to 
be  punished,  but  even  that  against  false 
gods,  supposed  saints  and  fictitious  religion, 
whenever  they  happen  to  be  the  gods, 
saints,  and  religion  of  the  people. 

Putting  blasphemy  entirely  out  of  the 
question,  has  any  man  a  right  to  call  me 
to  my  face,  on  account  of  my  opinions, 
whether  true  or  false,  or,  which   is   the 


same  thing,  on  account  of  the  philosophy 
which  I  adopt,  a  foci,  a  profligate,  a  vil- 
lain !  He  may  be  of  a  different  opinion, 
and  may,  if  I  chocse  to  hear  him,  give  his 
reasons  with  great  animation,  in  which 
case,  should  a  harsh  word  escape  him  in 
the  keenness  of  argument,  I  am  bound  to 
overlook  it,  because  I  might  myself  be 
guilty  of  the  same  fault;  but  if,  without 
having  this  apology,  he  should  tell  me  to 
my  face,  The  philosophy  uhich  you  adopt 
is  nonsense;  it  is  abominable  ;  it  is  impos- 
ture ;  and  its  author  is  a,  villain  and  a 
rogue — I  certainly  should  not  be  censurable 
for  repaying  such  insolence  with  manual 
chastisement,  if  the  magistrate  would  listen 
to  no  complaint  on  account  of  it.  And  if 
the  man  had  treated  me  with  such  gross 
rudeness  in  the  presence  of  others — of  my 
children,  perhaps,  or  my  servants,  before 
whom  I  should  thereby  have  appeared  in  a 
contemptible  light,  his  offence  would  be  so 
much  the  greater;  I  oug'ht  to  have  it  in  my 
power  to  complain  of  it  ;  and  though,  in- 
stead of  doing  so,  I  were  to  give  him  a 
drubbing,  I  certainly  should  have  the  ex- 
cuse of  what  is  called  a  Justus  dolor  to 
plead.  Again,  the  offence  would  be  further 
aggravated,  and  my  right  to  revenge  it  the 
better  if  he  had  addressed  me  in  such  inso- 
lent language  in  a  place  where  he  had  no 
title  to  be  without  my  permission — for  ex- 
ample, in  my  own  house. 

Now  to  the  man  who  from  his  heart  be- 
lieves his  religion,  and  regards  it  as  tbe 
way  to  eternal  bliss,  and  as  the  comfort 
both  of  life  and  death,  and  who,  of  course, 
wishes  to  educate  his  family  in  the  knowl- 
edge and  belief  of  it,  nothing  can  be  more 
offensive  than  to  hear  another  speaking 
against  it,  and  employing,  not  arguments 
(although  even  these  he  might  let  alone, 
because  every  man  has  a  right  even  to  err, 
without  our  forcibly  interfering  to  rid  him 


IJLASPIIEMY.  130 

lcncc,  *bcin«r  for  the    most  part,  gross  insults    to  those  [  *131 
who  believe  in  the  doctrines  which  are  held  op  to  Bcorn 

of  his  errors,)  but  insolent  and  contemptu-     IIlore  the  scoffer  at  reli.  in  society, 

ous  language,  and  bloa  iheming  its  gods,  its    jf  uc  succeed  in  making  really  oontempti- 
prophets,  saints,  and  sacred  things.  Where     ble,  T   I     not  think  it  necessary  fa 
the  religion  in   question  is  only  tolerated    a  word. 
Btill  the  state  is  bound  to  protect  every  per-        To  the  complete  du 
son  who  believes  it,  from  such  outrages,  or    whether  he  disl  elievea  in  a  '  ther, 

it  cannot  blame  him  it'  he  has  not  the  pa-    ,,r  i,ut  only  as  concerning  himself  in  human 
tiencc  to  bear  them.     But  if  it   he  the  es-     j^tr^iis,  as    punishing    sin    an  1    ruling   the 
tablished  national   religion ,  and  of  course    world,  and  consequently  I 
the  person  not  believing  it  to  be  only  tole-    mer  of  the  only  I 

rated  by  the  state,  and  though  he  enjoys     fog  to  the  spirit  of  la?  .tion 

its  protection  just  as  if  he  were  in  a  strange     whatever,  because    no  n    be 

house,  such  an  outrage  is  excessively  gross;  placed  on  such  a  person,  his  oath  being  a 
and  unless  we  conceive  the  people  so  tame  mere  nonentity;  nor  is  be  to  betrut 
as  to  put  up  with  any  affront,  and  of  course  farther  than  he  is  under  inspection, 
likely  to  play  but  a  very  despicable  part  on  Should  he  be  a  malicious  rascal,  punish- 
the  stage  of  the  world,  the  state  has  only  ments  would  1  e  insufficient  t"  secure  us 
to  choose  between  the  two  alternatives,  of  against  his  attacks,  because  the  man  who 
cither  punishing  the  blasphemer  itself  or  has  no  dread  of  another  world,  can  hope  to 
else  leaving  him  to  the  fury  of  the  people,  escape  punishment  by  suicide.  lie  is 
The  former  is  the  milder  plan,  and  therefore  therefore  a  very  dangerous  member  of  so- 
to  be  preferred,  because  the  people  are  apt  ciety.  If  again  the  state  does  not  proceed 
to  gratify  their  vengeance  without  sufficient  Up0n  this  principle,  if  it  tolerates  the  Athe- 
inquiry,  and  of  course  it  may  light  upon  ;st  and  the  Infidel,  nay,  and  protects  him 
the  innocent.  too,  although  no  dependence  can  be  placed 

Nor  is  this  by  any  means  a  right  which  on  \x\3  do'mg  anything  in  return  for  the  de- 
I  onlj*  claim  for  the  religion  which  I  hold  fence  0f  the  country,  because  he  can  give 
to  be  the  true  one;  I  am  also  bound  to  ad-  himself  a  dispensation  from  all  oaths,  and 
mit  it  when  I  happen  to  be  among  a  people  putting  arms  into  his  hands  might  be 
from  whose  religion  I  dissent;  were  I  in  a  hazardous;  still  such  a  man  must  suspect 
Catholic  country  to  deride  their  saints  or  that  he  is,  as  I  before  expressed  it,  in  a 
insult  their  religion  by  my  behavior,  were  strange  house  wherein  he  cannot  possibly 
it  only  by  rudely  and  designedly  putting  on  claim  equal  rights  with  others.  His  oath 
my  hat,  where  decency  would  have  suggest-  cannot  so  much  as  be  valid  for  a  proof  in 
ed  the  taking  it  oil  ;  it  were  1  in  Turkey  to  any  judicial  process.  He  t  light,  therefore, 
blaspheme  Mahomet,  or  in  a  Heathen  city  to  behave  as  a  man  in  a  Btrange  house  will 
its  gods; — nothing  would  be  more  natural  naturally  do,  without  insulting  by  his 
than  for  the  people,  instead  i  f  Buffering  it,  blasphemies  the  people  who  lodged  and  pro. 
to  avenge  the  insult  in  their  usual  way,  tect  him,  and  yet  get  nothing  from  him  in 
that  is  tumultously,  passionately,  and  im-  return,  or  else  he  cannot  think  it  unjust 
moderately  ;  or  else  the  state  would,  in  that  he  should  be  punished  if  he  does. 
order  to  secure  me  from  the  effects  of  their  In  fit,  the  doctrine  that  llasj'hcmy 
fury,  be  under  the  necessity  i  f  taking  my     oinjhl  not  to  be  puni  me  to 

punishment  upon  itself,  and  if  it  border  upon  thi  religion;  for 

does  a  favor  both  to  me  and  other  dissent-     thus,  the  infidel  would  h  ive  a  right  to  blas- 
ers  from  the  established  religion,  because    pheme  and  we  should  beol  ear  it 

it  secures  us  from  still  greater  evils.     Of    Nay,  even  ind  reviling  religion  is, 

the  mischief  that  the  blasphemer,  and  still    likewise,  a  persecution  of  it,  and  one  that  is 


131  CRIMINAL  DIVISION. 

r  *132  ]     *and  contempt,  they  necessarily  become  an  important  sub- 
ject of  municipal  coercion  and  restraint  (6). 
[  *133  ]         *The  importance  of  cuch  restraints  is  strongly  illustra- 
ted in  the  instance  of  judicial  oaths.     The  foundation  of 
[  *134  ]     these  is  as  a  belief  in  a  superintending  *Deity,  who  watch- 
es over  the  affairs  of  men,  and  who  will,  in  a  future  state 
administer  rewards  and  punishments  with  reference  to 
[  *]35  ]     their  conduct  here.     *To  remove  therefore  so  solemn  and 
weighty  an  obligation,  would  be  to  overthrow,  or  at  least 
to  weaken,  that  confidence  in  human  veracity  which  is  necessary  for 
the  purposes  of  society,  without  which  no  question  of  property  could 

be  decided,  and  no  criminal  brought  to  justice  (c). 
[  *136  ]  *Upon  the  dangerous  temporal  consequences  likely  to 
proceed  from  the  removal  of  religious  and  moral  re- 
straints, the  punishment  for  blasphemous,  profane,  and  immoral  (d) 
publications  is  founded,  without  any  view  to  the  spiritual  correction 
or  amendment  (e)  of  the  offender. 

Blasphemy  against  the  Almighty  by  denying  his  being  or  provi- 
dence, contumelious  reflections  upon  the  life  and  character  of  Jesus 
Christ  (r/),  and  in  general  scoffing,  flippant,  and  indecorous  remarks 
and  comments  upon  the  scriptures,  are  offences  at  Common  Law, 
for  Christianity  (e),  as  has  frequently  been  asserted  by  high  author- 
ities, is  part  of  that  law.  There  arc  also  some  offences  against 
Christianity  in  particular,  which  will  be  afterwards  noticed,  as  having 
been  defined  by  certain  statutes.  The  first  instance  of  prosecution 
for   words    reflecting  on    religion    occurred  in    the  15th  year    of 

James  I. 
f  *137  ]  Atwood  (/)  was  convicted  upon  an  indictment  *before 
Justices  of  the  Peace  for  saying  "  the  religion  now  pro- 
felt  very  sensibly  by  its  friends;  for  if  I  am  SOcietas  civium  inter  ipsos  Liis  immortali- 
oblio-ed  to  let  another  person  insult  me  to  bus  interpositis  tarn  judicibus  tam  testibns. 
my  face,  I  must  consider  it  as  inflicting  a  Cic.  de  LL. 
deep  wound  upon  my  honor.  (d)   11  Mod.  142. 

(6)  Offences    of  this    nature,    because         (e)  4  131.  Comm.  59.     Fitz  65.     2  Roll, 
they  tend  to  subvert  all   religion  and  mo-     Ab.  78. 

rality,  which  are  the  foundation  of  govern-         (r/)  Haw.  P.  C.  Book,  1,  c.  5.     1  Vent, 
inent,    are    punishable    by    the   temporal     295.     3  Keb.  GOT.     4  Comm.  59. 
judges  with  fine  and  imprisonment.     Haw.         (e)  4  Bl.  Com.  59.     1  Haw.  PL  Cr.  c.  5. 
P.  C.B.I,  c.  5.  1  Vin.  293.  2  Str.  8S4.     1  Vent.  293.     11 

(c)  Utiles  esse  opiniones  has  quis  negat     Mod.  142.     1  Str.   416,788.     Fitz.  65.     2 
cum  intelligat  quam  multa  firmentur  jure-     Roll.  Ab.  137.     Cro.   J.    24,    421;     Infra, 
jurando;  quantte  salutis  sint  foederum  re-     138,  143. 
ligiones.  quam  multos  divini  supplicii  me-         (/)  Cro.  J.  421. 
tus  a  scelere  revocarit;  quamque  sancta  si 


BLASPHEMY.  137 

fesscd  was  anew  religion  within  fifty  years  ;  preaching  is  but  prat- 
ing and  hearing  of  service  more  edifying  than  two  hours'  preach- 
ing." It  was  assigned,  for  error,  that  this  was  ;t:i  offence  not  in 
quirablo  upon  indictments  before  .Justices  of  the  Peace,  but  only  be- 
fore the  High  Commissioners  ;  and  it  was  referred  to  1 1 1 ■  -  Attorney- 
General  (g-)  to  consider  thereof,  and  he  certified  that  it  was  not 
inquirable  before   them,  and  of  that  opinion  were   the  whole  court. 

In  i lie  King  v.  Taylor  (//),  the  defendant  was  convicted  upon  an 
information  for  saying  that  "Jesus  Christ  was  a  bastard,  a  whore- 
master;  religion  was  a  cheat  :  and  that  he  neither  feared  God,  the 
Devil,  nor  man."  Hale,  Chief  Baron,  observed,  that  such  kind  of 
wicked  and  blasphemous  words  were  not  only  an  offence  against  <  !od, 
and  religion,  but  a  crime  againsl  the  laws,  state,  and  government 
and  therefore  punishable  in  this  (i)  court;  that  to  say  religion  is  a 
cheat,  is  to  dissolve  all  those  obligations  whereby  civil  societies  are 
preserved  ;  and  that  Christianity  is  parcel  of  the  laws  of  England; 
and,  therefore,  to  reproach  the  Christian  religion  is  to  speak  in  sub- 
version of  the  law  [1]. 

In  the  cases  of  Clendon  (K)  and  Hall  (/),  the  defend-    [  "1    - 
ants  were  convicted  of  having  published  libellous  reflec- 
tions upon  the  Trinity,  and  it  does  not  seem  to  have  been  doubted 
in  those  cases  whether  the  offence  was  of  a  temporal  nature. 

In  the  case  of  the  King  v.  Woohton  (in),  the  defendant  had  been 
convicted  of  publishing  five  libels,  wherein  the  miracles  of  Jesus 
Christ  were  turned  into  ridicule,  and  his  life  and  conversation  ex- 
posed and  vilified.  It  was  moved  in  arrest  of  judgment,  that  the 
offence  was  not  punishable  in  the  Temporal  Courts.  Put  the  court 
declared  they  would  not  suffer  it  to  be  debate  1.  whether  to  write 
against  Christianity  in  general  was  not  an  offence  of  temporal  cog- 
nizance. The  counsel  for  the  defendant  further  contended,  that  the 
intent  of  the  book  was  merely  to  shew  that  the  miracles  of  desus 
were  not  to  be  taken  in  a  literal  but  in  an  allegorical  sense,  and 
therefore  that  the  book  could  not  be  considered  as  aimed  at  Chris- 
tianity in  general,  but  merely  as  attacking  one  proof  of  the  divine 
mission.  But  the  court  said  they  were  of  opinion,  that 
he  attacking  Christianity  in  this  way  was  destroying  'the   [   *P>9  ] 

(.-;)   Sir  Henry  Yelverton.  CO   E.  T.  10  Ann,  oite  1  Str.  78  I. 

(/i)  Vent.  293.  o  Keb.  Rep.  (0  1  Str.  416. 

(0  i.e.  of  K.  B  ("0  Str.  884.     Fitsgibb.  64,  Barnard. 

[1]  BLAsriiEMY  held  to  be  punishable  at  Common  Law,  in  The  People  v.  Rubles,  8 
Johns.  11.  2'JO. 


139  CRIMINAL  DIVISION. 

very  foundation  of  it ;  and  that  though  there  were  professions  in 
the  book  that  the  design  of  it  was  to  establish  Christianity  upon  a 
true  bottom,  by  considering  these  narratives  in  scriptureas  emblem- 
atical and  prophetical,  yet  that  these  professions  could  not  be 
credited,  and  that  the  rule  is,  aNeg-alio  contra  factum  non  est  admit- 
tend  a. 

But  the  court,  in  declaring  that  they  would  not  suffer  it  to  be  de- 
bated, whether  writing  against  Christianity  in  general  was  a  tem- 
poral offence,  desired  that  it  might  be  noticed  that  they  la.id  their 
stress  upon  the  term  general,  and  did  not  intend  to  include  disputes 
between  learned  men  upon  particular  controverted  points  ;  and  Lord 
Raymond,  C.  J.  in  delivering  the  opinion  of  the  court  said,  "  I 
would  have  it  taken  notice  of,  that  we  do  not  meddle  with  any  dif- 
ferences in  opinion,  and  that  we  interfere  only  (n)  where  the  very 
root  of  Christianity  is  struck  at ;"  and  with  him  agreed  the  whole 
court. 

An  information  (o)  was  filed  by  the  Attorney-General  (/?)  against 
Jacob  Hive  for  publishing  a  profane  and  blasphemous  libel,  tending 
to  vilify  and  subvert  the  Christian  religion,  and  to  blas- 
[  *140  ]  pheme  *our  Savior  Jesus  Christ,  and  to  cause  his  divin- 
ity to  be  denied,  and  to  represent  him  as  an  imposter, 
and  to  scandalize,  ridicule,  and  bring  into  contempt,  his  most  holy 
life  and  doctrine ;  and  also  to  cause  the  truth  of  the  Christian 
religion  to  be  disbelieved  and  totally  rejected,  by  representing 
the  same  as  spurious  and  chimerical,  and  a  piece  of  forgery  and 
priestcraft. 

An  information  (#)  was  exhibited  against  one  Peter  Annett,  by 
the  Attorney-General,  for  a  certain  malignant,  profane,  and  blasphe- 
mous libel,  intituled  "  The  Free  Inquirer,"  tending  to  blaspheme  Al- 
mighty God,  and  to  ridicule,  traduce,  and  discredit  his  Holy  Scrip- 
tures, particularly  the  Pentateuch,  and  to  represent,  and  to  cause  it 
to  be  believed,  that  the  prophet  Moses  was  an  imposter,  and  that 
the  sacred  truths  and  miracles  recorded  and  set  forth  in  the  Penta- 
teuch were  impositions  and  false  inventions,  and  thereby  to  diffuse 
and  propagate  irreligious  and  diabolical  opinions  in  the  minds  of  his 
Majesty's  subjects,  and  to  shake  the  foundations  of  the  Christian 

(n)  Fitzgibbon,  GG.  (9)  Mich.  3  Geo.  III.  1763.     2  Burn's 

(o)   Hill,  Term,  29.  G.   II.    1756.     Dig.  Ecclesiastical  Law,  781. 

L.  L.  83.  (r)  Hil.  4,  G.  III. 

(p)  Charles  Pratt,  Esq.  afterwards  Chief        (s)  Sir  Fletcher  Norton. 

Justice  of  the  Common  Pleas. 


BLASPHEMY.  140 

religion,  and  of  the  civil  and  ecclesiastical  government  established 
in  this  kingdom. 

Being  convicted  upoo  this  information,  the  sentence  of 
the  Court  of  King's  Bench  was,  that  'he  should  suffer  one    [  '111 
month's  imprisonment  in   Newgate,  Btand    twice  in  the 
pillory,  once  at  Charing  Cross,  and  once  at  the   Royal  Excha 
and  then  lie  confined  in  Bridewell  to  hard  labor  for  >■  .  and 

to  find  security  for  his  good  behavior  for  the  remainder  of  his  life. 

An  information  (r)  was  exhibited  by  the'  Attorney-General  («) 
again.-t  John  Wilkes,  for  publishing  an  obscene  and  impious  libel, 
ending  to  vitiate  and  corrupt  the  minds  ami  manners  of  his  Ma- 
jesty's subjects;  to  introduce  a  total  contempt  of  religion,  modesty, 
and  virtue;  to  blaspheme  Almighty  God;  and  in  ridicule  uur 
Savior  and  the  Christian  religion. 

In  the  King  v.  Williams  (O  the  defendanl  was  convicted  of  hav- 
ing published  a  libel,  entitled  ••  Paine's  Age  of  Reason,"  which 
denied   the  authority  of  the  Old  and  New  Testament,  Q  that 

reason  was  the  only  rule  by  which  the  conduct  of  men  oughl  to  be 
guided,  ami  ridiculed  the  prophets,  .Jesus  Christ,  his  disciples,  and 
the  scriptures.  Upon  being  brought  up  to  receive  sentence,  .Mr. 
Justice  Ashurst  observed,  that  such  doctrines  were  an  offence  not 
only  against  Cod,  but  against  law  and  government,  from 
their  'direct  tendency  to  dissolve  all  the  bonds  and  obli-  [  "1-IJ  I 
gations  of  civil  society  :  and  that  upon  this  ground  it 
was,  that  the  Christian  religion  constituted  part  of  the  law  of  the 
land  (u). 

(0  Before   Lord  Kenyon,  C.  J.   at  the  l>c  stripped  of  one  of  its  principal  Banc- 

Gnildhftll,  1797.  tions— the    dread     of  future   punishment, 

00  He  observed,   that  "although  the  This  crime  was   farther  aggravated  by  the 

Almighty  did  not  require  the  aid  of  human  motive  in  which   it  was  eived;  there 

tribunals  to  vindicate   his  precepts,  it  was,  oould  be  i 

nevertheless,  t\<.  to  Bhow  our  abhorrence  of  of  passion,  to  which   man  v  .  lS. 

such  wicked  doctrines,  which  were  not  only  posed  by  the  frailty  of  his  n  iture;  it  could 

an  offence  against  God,  but  against  all  law  have  proceeded  only  from  a  cool  and  i. 

and    government,   from   their  direct  ten-  unit  spirit."     Mi-.  Justice   Ashurst  then 
dency  to  dissolve  all  the  bonds  and  obliga-  i    the  judgment  art, 

tions  of  c'nil  society.     It   was   up0n  this  which   was,  "that  the  defendant   be   im- 

ground  that  the  Christian  religion  consti-  prisoned  in  the  1  rone 

tuted  part  of  the  law  of  the  land.     But  if  year,  there  to  be  kept   to  hard  labor,  and 

the  name  of  our    Redeemer  was  Suffered  to     that,  at    the    expiration    thi  -hall 

be  traduced,  and  his  holy  religion  treated  give  security  to  the  amount  of  £1000  for 

with  contempt,  the  solemnity  of  an  oath,  his  good  behavior  for  the  rest  of  his  life." 
on  which  the  due  administration  of  justice        Lord  Kenyon  said,  that  the  sentence  was 

depended,  would  be  destroyed,  and  the  law  light,   very   light   indeed,   considering  th 


142  CRIMINxlL  DIVISION. 

Daniel  Isaac  Eaton  was  convicted  upon  an  information 
[  *143  ]  filed  by  the  Attorney-General  (x),  of  having  published 
an  impious  libel,  representing  Jesus  Christ  as  an  impostor 
— the  Christian  religion  as  a  mere  fable — and  those  who  believed  in 
•t  as  infidels  to  God.  Upon  being  brought  (#)  up  to  receive  the 
judgment  of  the  court,  though  his  counsel  addressed  the  court  for 
the  purpose  of  mitigating  the  punishment,  no  exception  was  taken 
to  the  legality,  or  propriety  of  the  conviction. 

It  appears,  therefore,  to  have  been  long  ago  settled,  that  blasphe- 
my against  the  Deity  in  general,  or  an  attack  against  the  Christian 
religion  individually,  for  the  purpose  of  exposing  its  doctrines  to 
contempt  and  ridicule,  is  indictable  and  punishable  as  a  temporal 
offence  at  Common  Law.  The  same  doctrine  has  been  fully  recog 
nized  in  several  recent  cases  (c). 

With  respect  to  the  extent  of  this  offence,  and  the  na- 
[  *144  ]  ture  and  certainty  of  the  words,  it  appears,  *in  the  first 
place,  to  be  immaterial,  whether  the  publication  be  oral 
(a)  or  written  ;  though  the  committing  mischievous  matter  to  print 
or  writing,  and  thereby  affording  it  a  wider  circulation,  would  un- 
doubtedly be  considered  as  an  aggravation,  and  affect  the  measure 
of  punishment. 

Again,  it  does  not,  in  principle,  seem  to  be  material,  whether  the 
direct  attack  is  made  upon  religion  in  general,  or  upon  some  par- 
ticular proof  or  evidence  in  support  of  it:  thus,  in  Woolston's  case, 
the  publication  was  considered  to  be  illegal,  though  the  immediate 
and  professed  object  of  the  writer  was  to  overthrow  the  evidence  of 
the  divine  mission  supplied  by  the  miracles,  and  to  degrade  them 
into  mere  emblems  and  allegory.  The  court  were  there  of  opinion, 
that  a  general  and  deliberate  intention  to  subvert  Christianity  might 
be  evidenced  by  an  attempt  to  weaken  one  of  the  several  proofs  upon 
which  its  credibility  rests ;  and,  indeed,  it  would  be  inconsistent  to 
inflict  penalties  for  any  general  attack  upon  the  system  of  Christi- 

nature  of  his  offence,  which  was  horrible  to  years,  and  to  find  sureties  for  his  good  be- 

Christian  ears;  he  had  known  a    case  of  havior  for  the  term  of  his  life.    Also  in  the 

less   enormity,   where  the  defendant   was  case  of  R.  v.   Wadiington,\  B.    &  C.  26, 

sentenced  to  three  years  imprisonment.  and  R.  v.  Taylor,  who  in  lid.   T.    1828, 

(x)  Sir  Vicary  Gibbs,  Knt.     -  was  sentenced  to  pay  a  fine,  and  to   suffer 

(y)  Easter  Term,  52  G.  III.  one   year's   imprisonment,  for  a  blasphe- 

(  =  )   Rex   v.   Carlile,  3    B.   &  A.   1G1,  mous  discourse. 

where  the  defendant  having  been  convicted         (a)    The  King  v.  Alwood,  Cro.   J.  421. 

of  publishing  two  blasphemous  libels,  was,  The   King  v.   Taylor,   3    Keb.   Rep.  G07. 

in  Mich.  T.  GO  G.  III.,  sentenced  to  pay  a  Vent.  293.     The  King   v.    Taylor.  Hil.  T. 

fine  of  £1500,  to  be  imprisoned  for  three  1828. 


BLASPHEMY.  144 

anity,  ami  yet  to  allow  its  foundations  to  ba  gradually  sapped  and 
undermined  with  impunity. 

It  may  be  asked,  is  every  publication  which  'tendi  to  |  *14o  ] 
weaken  any  particular  argument  which  has  been  adduced 

to  prove  the  existent fa  superintending   Deity,  or  the  truth  of 

Christianity,  illegal  and  indictable?  There  can  be  no  doubt  as  to 
the  general  right  of  inquiry  and  discussion,  even  upon  the  most  sa- 
cred  subjects,  provided  the  license  be  exercised  in  the  Bpirit  of  tem- 
perance, moderation,  and  fairness,  without  any  intention  to  injure  or 
affront  (b).  In  the  cases  cited,  the  defendants  were  charged  with 
having  exposed  Christianity  and  its  doctrines  to  contempt  and  ridi- 
cule, for  the  purpose  of  introducing  &  general  disregard  of  religion. 

And  in  Wooslton's  case  the  court  desired  it  might  be  particularly 
noticed,  that  they  laid  stress  upon  the  term  general,  and  did  not  in- 
tend to  include  disputes  between  learned  men  upon  controverted 
points. 

There  are  no  questions  of  more  intense  and  "awful  in-  |  L46  ] 
tercst,  than  those  which  concern  the  relations  between 
the  Creator  and  the  beings  of  his  creation  ;  and  though,  as  a  matter 
of  discretion  and  prudence,  it  might  be  better  to  leave  the  discussion 
of  such  matters  to  those  who  from  their  education  and  habits,  are 
most  likely  to  form  correct  conclusions,  yet  it  cannot  be  doubted 
that  any  man  has  a  right,  not  merely  to  judge  for  himself  on  such 
subjects,  but  also  legally  speaking,  to  publish  his  opinions  for  the 
benefit  of  others. 

When  learned  and  acute  men  enter  upon  these  discussions  with 
such  laudable  motives,  their  wry  controversies,  even  where  one  of 
the  antagonists  must  necessarily  be  mistaken,  so  far  from  producing 
mischief,  must  in  general  tend  to  the  advancement  of  truth,  and  the 
establishment  of  religion  on  the  firmest  and  most  stable  foundations. 
The  very  absurdity  and  folly  of  an  ignorant  man.  who  professes  to 
teach  and  enlighten  the  rest  of  mankind,  are  usually  so  gross  as  to 
render  his  errors  harmless  :  but  be  this  as  it  may.  the  Law  interferes 
not  with  his  blunders  so  long  as  they  are  honest  ones,  justly  consid- 
ering, that  society  are   more  than   compensated   for  the    partial  and 

(b)  See  the  trial  of  the  publisher  of  its  sanctions, *has  a  right  to  deny 
Paine's  Age  of  Reason,  The  learned  conn-  existence,  and  to  pour  forth  Buoh  shocking 
sel  for  the  prosecution  (Mr,  Erskine)  ob-  and  insulting  invectives  as  the  lowest  es- 
sarved,  "  Every  man  lias  a  right  toinvesti*  tablishments  in  tin'  gradations  of  civil  an- 
nate, with  reason,  controversial  points  of  thority  ought  not  to  be  Subjected  1 0,  ami 
the  Christian  religion;  but  no  man,  eon-  which  would  soon  be  borne  down  by  vio- 
sistently  with  a  law  which  only  exists  under  lence  and  disobedience  if  they  were." 

Vol.  II.  42 


146  CRIMINAL  DIVISION. 

limited  mischiefs  which  may  arise  from  the  mistaken  endeavors  of 
honest  ignorance,  by  the  splendid  advantages  which  result  to  religion 
and  to  truth  from  the  exertions  of  free  and  unfettered 
[  *147  "  minds.  It  is  the  mischievous  *abuse  of  this  state  of  in- 
tellectual liberty  which  calls  for  penal  censure.  The  law 
visits  not  the  honest  errors,  but  the  malice  of  mankind.  A  wilful 
intention  to  pervert,  insult,  and  mislead  others,  by  means  of  licen- 
tious and  contumelious  abuse  applied  to  sacred  subjects,  or  by  wil- 
ful misrepresentations  or  artful  sophistry,  calculated  to  mislead  the 
ignorant  and  unwary,  is  the  criterion  and  test  of  guilt. 

A  malicious  and  mischievous  intention,  or  what  is  equivalent  to 
such  an  intention,  in  law,  as  well  as  morals — a  state  of  apathy  and 
indifference  to  the  interests  of  society  is  the  broad  boundary  between 
right  and  wrong,  If  it  can  be  collected  from  the  circumstances  of 
the  publication,  from  a  display  of  offensive  levity,  from  contumelious 
and  abusive  expressions  applied  to  sacred  persons  or  subjects,  that 
the  design  of  the  author  was  to  occasion  that  mischief  to  which  the 
matter  which  he  publishes  immediately  tends,  to  destroy  or  even  to 
weaken  men's.sense  of  religious  or  moral  obligations,  to  insult  those 
who  believe  by  casting  contumelious  abuse  and  ridicule  upon  their 
doctrines,  or  to  bring  the  established  religion  and  form. of  worship 
into  disgrace  and  contempt  (c),  the  offence  against  society  is  com- 
plete. 

The  legislature  has,  nevertheless,  deemed  it  proper  to  fortify 

the  Common  Law  restraint  by  several  penal  enactments, 

[  *148  ]    *applicable  to  particular  persons  and  cases.     By  statutes 

1  Ed.  VI.  c.   1,  and  1  Eliz.  c.  1,  s.  14,  whoever  reviles 

the  sacrament  of  the  Lord's  supper  shall  be  pu  nished  by  fine  and 

imprisonment. 

By  stat.  1  Eliz.  c.  2,  if  any  minister  shall  speak  any  thing  in 
derogation  of  the  book  of  Common  Prayer,  he  shall,  if  not  beneficed, 
be  imprisoned  one  year  for  the  first  offence,  and  for  life  for  the 
second;  and  if  he  be  beneficed,  he  shall  for  the  first  offence  be  im- 
prisoned six  months,  and  forfeit  a  year's  value  of  his  benefice  ;  for 
the  second,  he  shall  be  deprived  and  suffer  one  year's  imprisonment ; 
and  for  the  third,  shall  in  like  manner  be  deprived,  and  suffer  im- 
prisonment for  life.     And  if  any  person  whatsoever  shall,  in  plays, 

(c)  Sir  William  Blackstone,  in  his  com-  cussions  of  the  rectitude  and  propriety  of 
ment  upon  tbe  Statutes  cited  below,  ob-  the  established  made  of  worship,  yet  con- 
serves, "  It  is  clear  that  no  restraint  should  tumely  and  contempt  are  what  no  estab- 
be  laid  upon  rational  and  dispassionate  dis-  lishment  can  tolerate."     4  Bl.  Com.  51. 


BLASPHEMY.  148 

songs,  or  other  open  words,  speak  any  thing  in  derogation,  deprav- 
ing or  despising  of  the  said  book,  or  shall  forcibly  prevent  the  read- 
ing of  it,  or  cause  any  other  service  to  be  read  in  its  stead,  he  shall 
forfeit  for  the  first  offence  100  marks,  for  the  second  l(><>.  and  for 
the  third,  shall  forfeit  all  his  goods  and  chattels,  and  Buffer  impris- 
onment for  life. 

By  the  13  Eliz.  c.  12,  a  person  ecclesiastical,  advisedly  affirming 
any  doctrine  contrary  to  the  articles  established  at  a  con- 
vocation, *holden  at  London,  in  the  year    1562,  is  Liable    [   '149   ] 
to  deprivation,  if  he  persist  in  his  error. 

By  tin-  '■'>  J.  1,  c.  21,  whoever  shall  use  the  name  of  the  Holy 
Trinity  profanely  or  jestingly  in  any  stage  play,  Interlude,  or  show, 
shall  l)e  liable  to  a  penalty  of  £10. 

By  stat.  9  and  10  Will.  III.  c.  32,  if  any  person  educated  in,  or 
having  made  profession  of  the  Christian  religion,  shall  by  writing, 
printing,  teaching,  or  advised  speaking,  deny  any  one  of  tin'  persons 
of  the  Holy  Trinity  to  be  God,  or  assert  or  maintain  that  there  are 
more  gods  than  one,  or  deny  the  Christian  religion  to  be  true,  or  the 
holy  scriptures  to  be  of  divine  authority,  he  shall,  upon  the  first  of- 
fence, be  rendered  incapable  to  hold  any  office  or  place  of  trust  :  and 
for  the  second,  be  rendered  incapable  of  bringing  any  action,  being 
guardian,  executor,  legatee,  or  of  any  legacy  or  deed  of  gift,  or 
to  bear  any  civil  or  military  office  or  benefice  ecclesiastical,  and  shall 
suffer  imprisonment  for  three  years  from  the  time  of  conviction  (//). 

By  the  st.  53  G.  III.  c.  100,  s.  2,  the  provisions  of  the  last  cited 
act  arc  repealed  so  far  as  they  relate  to  persons  denying, 
*as  therein  mentioned,  the  Holy  Trinity.  [  *150  ] 

An  offender  against  the  st.  9  and  10.  W.  III.  c.  32,  is 
still  indictable  at  common  law,  for  a  statute  inflicting  a  new  punish- 
ment docs  not  take  away  the  old  one,  unless  it  change  the  offence 
or  make  it  of  a  different  nature  (e). 

(<f)   By  sec.  2,  no  person  shall  be  prose-  ing  been  convicted  of  a  blasphemous  libel 

■  euted  under  the  net  fur  words  spoken,  on-  on  an  information  for  an  offence  at  common 

less  the  information  shall  be  given  on  oath  law,  the  oonrt  held,  that    the  st  it.  9  &  1" 

before  one  or  more  justices  within  fourd  iv  W.  III.  did  not   alter  the  common  law  of- 

after  such  words  spoken,  and    the  prosecu-  fence,  but  merely  gave    a  cumulative  pun- 

cution  shall  be  within  three  months  after  ishment.     Best,  J.  In  giving  judgment,  ob- 

such  information.  served,  so  fir  from  the    Statute  of  William 

(e)  JR.  v.  Carlile,3  B.  &  A.  101.  R.  v.  containing  pr                    inconsistent  with 

Williams,  Howell's  St.  Tr.  vol.  26,  p.  656.  the  common  law  as    to   operate  as  a  repeal 

2  Str.  884.     Barnard,  K.    B.    162.      R.  v.  by  implication,  OB  fat    a*    it    applies  to  the 

Eaton,  1815.    In  the  case  of  The  King  v.  offence  of  libel,  it  seems  intended  to  aid  the 

Carlile,  3  B.  &  A.  161,  the  defendant  hav-  common  law.     It  is  called  •'  An  act  for  the 


150 


CRIMINAL  DIVISION. 


[  *151  ]  *And  it  seems  that  the  st.  53  G.  III.  c.  160,  s.  2, 
does  not  alter  the  common  law,  but  only  removes  the  pen- 
alties imposed  upon  persons  denying  the  Trinity  by  the  st.  9  and 
10  TV.  III.  c.  32 ;  and  therefore,  contumelious  remarks  on  the 
character  of  Jesus  Christ,  published  with  intent  to  impugn  the  au- 
thenticity of  the  scriptures  is  still  an  offence  at  common  law  (/). 


more  effectual  suppression  of  blasphemy 
and  profaneness."  *  It  would  ill  deserve 
that  name  if  it  abrogated  the  common  law, 
inasmuch  as  for  the  first  offence  it  only 
operates  against  those  who  are  in  possession 
of  offices  or  in  expectation  of  them.  The 
rest  of  the  world  might  with  impunity 
blaspheme  God,  and  profane  the  ordinan- 
ces and  institutions  of  religion,  if  the  com- 
mon law  punishment  is  put  an  end  to.  But 
the  legislature  in  passing  this  act  had  not 
the  punishment  of  blasphemy  so  much  in 
view,  as  the  protecting  the  government  of 
the  country,  by  preventing  infidels  from 
getting  into  places  of  trust.  In  the  age  of 
toleration  in  which  that  statute  passed, 
neither  churchmen  or  sectarians  wished  to 
protect  in  their  infidelity  those  who  dis- 
believed the  Holy  Scriptures;  on  the  con- 
trary, all  agreed  that  as  the  system  of 
morals  which  regulated  their  conduct  was 
built  on  these  scriptures,  none  were  to  be 
trusted  with  offices  who  showed  they  were 
under  no  religious  responsibility.  This  act 
is  not  confined  to  those  who  libel  religion, 
but  extends  to  those  who,  in  the  most  pri- 
vate intercourse  by  advised  conversation, 
admit  that  they  disbelieve  the  scriptures^ 
Both  the  common  law  and  this  statute  are 
necessary,  the  first  to  guard  the  morals  of 
the  people,  the  second  for  the  immediate 
protection  of  the  government. 

The  defendant  was  afterwards  for  this 
and  another  blasphemous  libel,  sentenced 
to  pay  a  fine  of  £1500;  to  be  imprisoned 
for  three  years  and  to  find  sureties  for  his 
good  behavior  for  the  term  of  Ins  life. 

(/")  R.  v.  Waddirujton,  I  B.  &  C.  26 
Mich.  Term,  1822. 

This  was  an  information  by  the  Attorney 
General  against  the  defendant  for  a  blas- 
phemous libel.  The  effect  of  the  libel  set 
out  in  the  information  was   to  impugn  the 


authenticity  of  the  scriptures,  and  one 
part  of  it  stated  that  Jesus  Christ  was  an 
imposter,  and  a  murderer  in  principle,  and 
a  fanatic.  The  defendant  was  tried  at  the 
last  Middlesex  Sittings  after  last  Trinity 
Term  and  convicted.  Before  the  verdict 
was  pronounced,  one  of  the  jurymen  asked 
the  Lord  Chief  Justice  whether  a  work 
which  denied  the  divinity  of  our  Saviour 
was  a  libel.  The  Lord  Chief  Justice  an- 
swered, that  a  work  speaking  of  Jesus 
Christ  in  the  language  used  in  the  publica- 
tion in  question,  was  a  libel;  Christianity 
being  a  part  of  the  law  of  the  land.  The  de- 
fendant in  person  now  moved  for  a  new  trial 
and  urged  that  the  Lord  Chief  Justice  had 
misdirected  the  jury,  by  stating  that  any 
publication  in  which  the  divinity  of  Jesus 
Christ  was  denied,  was  an  unlawful  libel; 
and  he  argued  that,  since  the  53  G.  III.  c. 
160,  was  passed,  the  denying  one  of  the 
persons  of  the  Trinity  to  be  God  was  no  of- 
fence, and  consequently  that  a  publication 
in  support  of  such  a  position  was  not  a  libel. 
Abbott,  C.  J.  I  told  the  jury  that  any 
publication  in  which  our  Saviour  was  spo- 
ken of  in  the  language  used  in  the  publica- 
tion, for  which  the  defendant  was  prosecu- 
ted, was  a  libel.  I  have  no  doubt  what- 
ever, that  it  is  a  libel  to  publish  that  our 
Saviour  was  an  imposter  and  a  murderer 
in  principle. 

Bayley,  J.  It  appears  to  me  that  the 
direction  of  my  Lord  Chief  Justice  was 
perfectly  right.  The  53  G.  III.  c.  160,  re- 
moves the  penalties  imposed  by  certain 
statutes  referred  to  in  the  act,  and  leaves 
the  common  law  as  it  stood  before.  There 
cannot  be  any  doubt  that  a  work  which 
does  merely  deny  the  Godhead  of  Jesus 
Christ,  but  which  states  him  to  be  an  im- 
poster and  a  murderer  in  principle,  was  a  t 
common  law,  and  still  is,  a  libel. 


BLASPHEMY. 


151 


Holroyd,  J.  I  have  no  doubt  whatever, 
that  any  publication  in  which  our  Saviour 
is  spoken  of  in  tbe  language  used  in  the 
work  which  wa3  the  subject  of  this  prose- 
cution, is  a  libel.  The  direction  of  the 
Lord  Chief  Justice  was  therefore  right  in 
point  of  law,  and  there  is  no  ground  fur  a 
new  trial. 

Best,  J.  My  Lord  Chief  Justice  reports 
to  us  that  he  told  the  jury  th  it  it  was  an 
indictable  oft'ence  to  speak  of  Jesus  Christ 
in  the  manner  he  is  spoken  of  in  the  publi- 
cation for  which  this  defendant  is  indicted. 
It  cannot  admit  of  the  least  doubt  that  this 
direction  was  correct.  The  53  G.  Hi.  c. 
1G0,  has  made  no  alteration  in  the  common 
law  relative  to  libel.  If  previous  to  the 
passing  of  that  statute  it  would  have  been 
a  libel  to  deny,  in  any  printed  work,  the 
divinity  of  the  second  person  in  the  Trinity, 
the  same  publication  would  be  a  libel  now. 
The  53  Geo.  III.  c.  160.  as  its  title  expres- 
ses, is  an  act  to  relieve  persons  who  im- 
pugn the  doctrine  of  the  Trinity  from  cer- 
tain penalties.  If  we  look  at  the  body  of 
the  act  to  see  from  what  penalties  such  per- 
sons are  relieved,  we  find  that  they  aie  the 
penalties  from  which  the  1  W.  &  M.  Sess.  1 
c.  18,  exempted  all  Protestant  dissenters 
except  such  as  denied  the  Trinity;  and  the 
penalties  or  disabilities  which  the  0  and  10 
W.  III.  imposed  on  those  who  denied  the 
Trinity.  The  1  W.  and  M.  Sess.  1,  c.  18, 
is,  as  it  has  been  usually  called,  An  Act  of 
toleration,  or  one  which  allows  dissenters 
to  worship  God  in  the  mode  that  is  agree- 


able to  their  religious  opinions,  and  ex- 
empts them  from  punishment  for  non-at- 
tendanee  at  the  established  church  and 
non-conformity  to  its  rites.  The  legisla- 
ture in  passing  that  act,  only  thought  of 
easing  the  consciem-i-  ofdissenten  and  not 
of  allowing  them  to  attempt  to  weaken  the 
faith  of  the  members  of  the  church.  The 
'J  and  ID  \V.  III.  was  to  give  security  to  the 
government  by  rendering  men  incapable 
of  office,  who  entertained  opinions  hostile 
to  the  established  religion.  The  only  pen- 
alty imposed  by  that  statute  is  exclusion 
from  office,  and  that  penalty  is  incurred  by 
any  manifestations  of  dangerous  opinions 
without  proof  of  the  intention  in  the  per- 
son entertaining  it,  either  to  induce  others 
to  be  of  that  opinion,  or  in  any  manner  to 
disturb  persons  of  a  different  persuasion. 
This  statute  rested  on  the  principle  of  the 
test  laws,  and  did  not  interfere  with  the 
common  law  relative  to  blasphemous  libels. 
It  is  not  necessary  for  me  to  say  whether  it 
be  libellous  to  argue  from  the  scriptures 
against  the  divinity  of  Christ;  that  is  not 
which  the  defendant  professes  to  do.  He 
argues  against  the  divinity  of  Christ,  by 
denying  the  truth  of  the  Scriptures.  A 
work  containing  such  arguments  published 
maliciously  (which  the  jury  in  this  case 
have  found)  is  by  the  common  law  a  libel, 
and  the  legislature  has  never  altered  this 
law,  nor  can  it  ever  do  so  whilst  the  Chris- 
tian religion  is  considered  to  be  the  basis 
of  that  law. 

Rule  Refused. 


42* 


CHAPTER  VII. 


Of  Publications  tending  to  subvert  Morality. 

*155  ]  *Itisnow  fully  established,  that  any  immodest  and  im- 
moral publication,  tending  to  corrupt  the  mind,  and  to 
destroy  the  love  of  decency,  morality,  and  good  order,  is  punishable 
in  the  temporal  courts  ;  though  some  doubt,  as  will  appear  from  a 
brief  review  of  the  cases,  seems  formerly  to  have  been  entertained 
upon  this  subject. 

Sir  Charles  Sedley  (a)  was  indicted  for  having  exposed  his  naked 
body  in  a  balcony  in  Covent  Garden,  and  for  having  committed  oth- 
er indecent  acts  before  a  great  multitude  of  people.  The  indictment 
was  openly  read  to  him  in  court ;  and  afterwards,  on  being  required 
to  take  his  trial  at  bar,  he  submitted  to  it.  From  the  different  re- 
ports of  this  case  it  appears,  that  after  the  abolition  of  the  Star-cham- 
ber, the  Court  of  King's  Bench  was  considered  as  the  cuslos  morum, 
to  whom  the  cognizance  of  such  offences  most  properly  be- 
[  *156  ]  longed  ;  and  although  it  was  afterwards  contended,  *that 
judgment  was  given  against  the  defendant,  on  account  of 
the  personal  violence  he  used  in  throwing  down  bottles  upon  the 
mob,  yet  from  the  language  of  the  reporters,  it  clearly  appears,  that 
the  Judges  considered  the  offence  to  have  been  committed  against 
modesty  and  good  manners,  and  found  it  necessary  to  interfere  in 
those  profligate  times  (6)  to  punish  such  immodest  practices,  which 
the  court  said  were  as  frequent,  as  if  not  only  Christianity  but  mo- 
rality also  had  been  neglected. 

Hill  (c)  was  indicted  for  publishing  some  obscene  poems  of  Lord 

(a)  Eeb.  R.  720.     2  Str.   791.     Foster,  players  for  immodest  plays,  they  had  in- 

99.     Mich.  15,  C.  2.  terest  enough  to  get  the  proceedings  stayed 

(6)  During  those  licentious  times,  it  ap-  before  judgment.     From.  Ent.  209,  213, 

pears  to  have  been  of  little  use   to  convict  214,215. 

offenders  of  this   description;  for    though  (c)  Str.  790.    Dig.  L.  L.  60.     Mich.  10 

there  were  many  prosecutions  against  the  W.  III. 


LIBELS  ACAIXST  MORALITY.  156 

Rochester  tending  to  the  corruption  of  youth,  but  going  abroad  he 
was  outlawed. 

Read  (d)  was  indicted  for  publishing  a  lascivious  and  obscene 
libel,  and  was  tried  and  convicted  before  Ld.  Holt,  C.  J.     It  was 

moved  in  arrest  of  judgment,  that  the  offence  was  merely  of  spirit- 
ual ami  not  of  temporal  cognizance  ;  Ld.  Bolt  was  of  opinion,  that 
the  offence  ought  to  be  punished  in  the  Ecclesiastical 
Court,  and  the  "Temporal  Courtscould  not  interfere,  since  [  "1.17  ] 
there  was  no  precedent  for  it  (e)  ;  and  Powell,  .1.  regret- 
tcd  that  it  was  not  punishable  at  Common  Law.  since  it  certainly 
tended  to  the  corruption  of  manners.  And  it  does  not  appear,  that 
any  judgment  was  ever  pronounced  against  the  defendant  (/). 

The  Attorney-General  exhibited  an  information  against  Curl,  for 
printing  and  publishing  an  obscene  book,  intituled,  "  Venus  in  the 
Cloister,  or  the  Nun  in  her  Smock."  The  defendant  having  been 
found  guilty,  it  was  moved  in  arrest  of  judgment,  that  the  offence 
was  of  mere  spiritual  cognizance,  that  in  the  reign  of  Charles  II. 
there  was  a  run  of  obscene  writings,  for  which  no  prosecutions  were 
instituted  in  the  temporal  courts,  and  Read's  case  was  cited. 

It  was  answered  by  the  Attorney  General  (#•),  that  to  destroy 
morality  is  to  destroy  the  peace  of  government,  since  government  is 
no  more  than  public  order ;  that  the  Spiritual  Courts  punish  only 
spiritual  defamation  by  words,  but  that  if  it  be  reduced  to  writing. 
it  is  a  temporal  offence  punishable  as  a  libel. 

The  Judges  had  some  difficulty  at  first  in  giving  judg- 
ment against  the  defendant,  chiefly,  "on  account  of  Read' s  [  *158  ] 
case  ;  but  afterwards  they  gave  it  as  their  unanimous 
opinion,  that  this  was  a  temporal  offence.  They  said,  it  was  plain, 
that  the  force  used  in  Sir  C.  Sed/eys  case  was  but  a  small  ingre- 
dient in  the  judgment  of  the  Court,  who  fined  him  £2000.  And 
that  if  the  force  was  all  they  went  upon,  there  was  no  occasion  to 
talk  of  the  Courts  being  custos  morum  of  the  King's  subjects  :  that 
if  Read's  case  were  to  lie  adjudged,  they  should  rule  it  otherwise  : 
and,  therefore,  gave  judgment  for  the  King. 

An  information  (//.)  was  granted  against  John  Wilkes,  for  print- 
ing and  publishing  an  obscene  and  impious  libel,  intituled  "An 
Essay  on  Woman."  Upon  which  he  was  convicted,  and  sentenced 
to  pay  a  fine  of  £500,  to  be  imprisoned  for  twelve  months,  and  to 
find  security  for  good  behavior  for  seven  years. 

(<f)  Easter,  6  Ann.  Fost.  Rep.  98,  99.  (/ )  2  Str.  792. 

(e)  Sir  C.  Sedley's  case  Beems  to  be  a        (</)  Sir  Philip  Yorke. 
precedent  in  principle.  (h)  4  Burr.  '2527. 


158  CRIMINAL  DIVISION. 

Ever  since  the  decision  in  Curl's  case,  it  seems  to  have  been  set- 
tled, that  any  publication  tending  to  the  destruction  of  the  morals 
of  society,  is  punishable  by  indictment ;  and  a  great  number  of  con- 
victions have  since  taken  place,  for  publishing  and  vending  immod- 
est books  and  pictures. 

With  respect  to  the  extent  of  the  offence  and  mode  of  publica- 
tion. 
[  *159  ]  *  Although  many  vicious  and  immoral  acts  are  not  in- 
dictable, yet  if  they  tend  to  the  destruction  of  morality 
in  general,  if  they  do  or  may  affect  the  mass  of  society,  they  become 
offences  (£)  of  a  public  nature.  In  the  cases  referred  to,  with  the 
exception  of  Sir  C.  Sed/ey's,  the  defendants  were  indicted  for 
printed  libels  ;  the  principle,  however,  of  those  cases,  and  the  ex- 
press decision  in  Sir  C.  Sedlei/s  seem  to  comprehend  other  inde- 
cent and  immoral  communications,  especially  when  made  before  a 
large  assembly,  such  as  the  performance  of  an  obscene  play,  which 
offence,  it  seems,  has  formed  the  ground  of  many  prosecutions  (&). 

By  the  stat.  3  G.  IV.  c.  40,  s.  3,  all  persons  openly  exposing  or 
exhibiting  in  any  street,  road,  public  place,  or  highway,  any  inde- 
cent exhibition,  or  openly  and  indecently  exposing  their  persons, 
shall  be  deemed  rogues  and  vagabonds  within  the  meaning  of  the 
act.  * 

(i)  Sid.  168.  (fc)  Str.  790. 


CHAPTKR   VIII. 


Publications  a.gainsi  the  CoNSTrrunON,  &c. 

*It  seems  to  be  clear  beyond  dispute,  that  any  member  *100  ] 
of  the  state  lias  a  right  to  suggesl  improvements  in  the  con- 
stitution (a)  and  to  point  out  what  lie  conceives  to  be  defects,  and 
that  though  he  be  mistaken,  he  does  not  offend  criminally ,  unless  he 
be  actuated  by  an  intention  to  work  mischief,  evidenced  by  the  licen- 
tious and  insulting  manner  in  which  lie  treats  o  the  established  con- 
stitution and  ordinances  of  the  country.  These,  so  long  as  they  ex- 
ist, ought  to  be  secured  from  contumely  and  insult,  lest  men's 
minds  should  be  excited  on  the  other  hand  to  effect  a  hasty  and  ill 
judged  demolition  of  the  political  fabric,  or  on  the  other 
should  be  provoked  to  acts  of  violence  *in  defence  of  a  [  *16l  ] 
political  establishment  which  they  hold  in  reverence  [1.] 

It  is  necessarily  incident  to  every  permanent  form  or  system  of 
government  to  make  provision  not  merely  for  its  continuance,  but 
for  its  secure  continuance.  To  that  security  the  confidence  and  es- 
teem of  the  people  is  indispensable,  and  therefore  it  is  essential  to 
prohibit  malicious  attempts  to  produce  the  mischiefs  of  political  rev- 
olution, by  rendering  the  established  constitution  odious  to  the  soci- 
ety which  has  adopted  it. 

By  the  13  Eli/,  c.  1,  it  is -a  misdemeanor,  punishable  with  forfeit- 
ure of  goods  and  chattels,  for  any  person  to  hold,  affirm,  or  maintain, 
that  the  common  laws  of  the  realm,  not  altered  by  parliament,  ought 
not  to  direct  the  right  of  the  crown  of  England. 
•    By  the  6th  Ann,  c.  7,  s.  7,  it  i>  made  high  treason  to  affirm  by 

(<i)  Lord  Loughborough,  in  the  debate  ingt  the  world  will  gain  by  them— if  they 

upon    the  Libel   Bill,  observed,  "Every  be  weak  and  absurd,  they  will  be  Ian 

man   may  publish,  at   his  discretion,  his  at  and  forgotten— if  they  bi  .      ,  they 

opinions  concerning  forms  and   Bystems  of  cannot  be  oriminal,  however  erroneous." 
government;  if  they  he  wise  ami  enlighten- 

(1)   The  courts    of  the  United    Stales  have   no  common    law  jm. 
at  libel  against   the  National  Government    The  U.   S.  v.  Hudson  ami  Goodwin,  1 
Crancli,  B2, 


161  CRIMINAL  DIVISION. 

writing,  or  printing,  that  the  king  is  not  the  lawful  and  rightful  king 
of  the  realm,  or  that  any  other  person  has  title  to  the  same  other- 
wise than  according  to  the  Bill  of  Rights,  the  Act  of  Settlement, 
and  the  Act  of  Union,  or  that  parliament  has  not  authority  to  limit 
the  descent  of  the  crown. 

One  of  the  earliest  cases  in  which  an  opinion  is  given  upon  the  in- 
dictable quality  of  words  abstractedly  reflecting  upon  the  constitu- 
tion, appears  to  have  been  given  in  the  forty-first  year 
[  *162  ]  of  *Elizabeth  ;  where  it  was  adjudged,  that  no  indictment 
lay  for  saying  that  the  laws  of  the  realm  were  not  the 
laws  of  God,  because  true  it  is  they  are  not  the  laws  of  God ;  but 
that  it  would  be  otherwise  to  say  that  the  laws  of  the  realm  are 
contrary  to  the  laws  of  God  (6). 

In  the  15th  (<?)  year  of  Ch.  II.  Brewster  was  a  second  time 
convicted  for  printing  and  publishing  a  libel,  called  "  The  Phoenix ; 
or  the  solemn  League  and  Covenant,"  in  which  it  was  declared  that 
a  king  abusing  his  power  may  be  opposed  ;  that  if  he  attempt  to 
enforce  his  encroachments  by  arms,  he  may  be  resisted,  because  he 
has  violated  the  contract  and  covenant  made  between  himself  and 
the  people,  and  that  the  breaking  this  covenant  was  a  greater  sin  than 
breaking  a  commandment. 

Harrison  (d)  was  convicted  on  an  information  charging  him  with 
having  published  concerning  the  government  of  England,  and  the 
traitors  who  adjudged  King  Charles  I.  to  death  :  that  the  govern- 
ment of  the  kingdom  consists  of  three  estates,  and  that  if  a  rebellion 
should  happen  in  the  kingdom,  unless  that  rebellion  was  against  the 
three  estates,  it  was  no  rebellion.  It  was  moved  in  ar- 
[  *163  ]  rest  of  judgment,  that  there  can  be  no  rebellion  *against 
the  king,  but  it  must  be  against  the  three  estates, who 
are  all  united  in  the  king.  But  the  court  overruled  the  objection, 
since  by  13  C.  II.  c.  1,  it  is  expressed,  that  neither  one  nor  both 
Houses  of  Parliament  can  make  war  against  the  king,  under  any 
pretence  Avhatever ;  and  that  though  there  be  three  estates  as  to 
making  laws,  there  is  but  one  authority  as  to  war. 

And  the  court  supposing  that  the  words  tended  to  set  on  foot  the 
position  upon  which  the  war,  levied  in  1641,  by  the  two  houses 
against  the  king  was  grounded,  were  much  displeased  that  counsel 
would  undertake  to  defend  them. 


(6)  2  Roll.  Ab.  78.  (d)   R.  v.  Harrison,  3  Keb.  841.  Ventr. 

(c)  Hil.  15  Ch.  II.  K.  B.  Dig.  L.  L.  72.     324.  Dig.  L.  L.  66. 


LIBELS  AGAINST  THE  CONSTITUTION.         163 

The  king  had  judgment,  and  the  defendant  brought  error  in  par- 
liament. 

So  a  treatise  upon  hereditary  right  has  been  held  to  be  a  libel, 
though  containing  no  reflection  upon  the  existing  government  1 1  ). 
Tutchin  was  convicted  (  /  )for  publishing,  in  a  paper  called  the  <  )b- 
servator,  that  there  were  mismanagements  in  the  government;  that 
for  such  they  had  a  right  to  call  their  governors  to  account,  to  dis- 
place the  ministers,  dethrone  the  reigning  sovereign,  and  to  trans- 
fer their  allegiance  to  whom  they  pleased. 

Dr.  Browne  (§•)' was  convicted  for  writing  a  'libel,  en-  [  *ltJ4  1 
titled  "  Mercurious  Politicus,"  which  asserted,  that  "  the 
late  revolution  was  the  destruction  of  the  laws  of  England." 

Richard  Xutt  (//)  was  convicted  upon  an  information,  for  publish- 
ing a  libel,  entitled  "The  London  Evening  Post,"'  in  which  it  was 
suggested,  that  the  revolution  was  an  unjust  and  unconstitutional 
proceeding;  and  the  limitation  established  by  the  act  of  settlement 
was  represented  as  illegal ;  and  it  was  asserted  that  the  revolution 
and  settlement  of  the  crown,  as  by  law  established,  had  been  at- 
tended with  fatal  and  pernicious  consequences  to  the  subjects  of  this 
kingdom. 

In  the  prosecutions  of  Shebbcare,  upon  an  information  for  a  libel, 
and  of  Thomas  Paine,  on  an  information  for  a  similar  offence,  one 
ingredient,  thougli  mixed  up  with  many  others,  was  an  attack  upon 
the  justice  and  policy  of  the  revolution,  representing  it  as  the  ori- 
gin and  foundation  of  many  political  evils  and  calamities  (Q. 

(e)    The  Queen  v.  Bedford,  2  Str.  7S0.  subjects  of  this  kingdom    did  labor  under, 
(/)  l!    Ld.    Ray.    1061.     Salk.    51.   G  and  also   t"   asperse  the  memory   of  King 
Mod.  .  William  (he  Third  and  of  King  George  the 
(g)  11  Mod.  86.                               -  First,  and  to  represent  the  publio  measures 
(h)  h\£.  I..  L.  G8.     -1  G.  II.  which  were  taken  and    punned  during  the 
(i)  An  information  wis  exhibited  by  the  course  of  their  respective  reigns,  as  wicked, 
Attorney-General  against  the  defendant  for  corrupt,  and  fatal  measures   to  this  king- 
printing    and    publishing    a  certain    false,  dom,  and  also    to    a-;                     ;  ilise,  and 
wicked,  scandalous, seditious, and  malicious  vilify  the  late  king  and    hi-  administration 
libel,  intituled  "  A  .Sixth  Letter  to  the  Peo-  of  the  government  of  this  kingdom,  and  to 
pie  of  England,  on  the  Progress  of  National  moke  it  thought  that  the  public   affairs  of 
ltuin,  in  which  it  is  shown  that  the  present  this    kingdom  were    ill   the    most    unhappy 
grandeur  of  France,  ai.d    the  calamities  of  and  declining  state,  and    that    the  subjects 
this  Nation,  are   owing  to    the  influence  of  of   this   kingdom  were    unnecessarily    an  1 
Hanover    on    the    Councils    of  England,"  most  intolerably  loaded  and  OppreSSi  i  with 
tending  to  traduce    the    revolution,  and   to  taxes,  debts,  and                       in  1  also  to  in- 
represent  it  as  the  foundation  of  all    those  sinuate    that  the  late    king  had  no  concern 
imaginary  evils  and  calamities  which    he,  for  the  people  of  England,  nor    any  regard 
the  defendant,  would   falsely    insinuate  the  for  the    interest,  honor,  or   welfare  of  this 


164  CRIMINAL  DIVISION. 

So  far  as  to  publications  which  principally  concern  abstractedly 
the  political  establishment  and  constitution  of  the  state  ; 
["  *165  ]    *anothcr  class,  and  one    *much  more  strongly  and  fre- 
quently tending-  to  produce  public  irritation  and  disorder, 
consists  of  malicious  publications  of  a  more  personal  nature,  affect- 
ing either  the  king  or  his  government,  or  ministers  of 
[  *166  ]    justice,  or  either  house  of  parliament,  and  tending  to 
render  them  odious  or  contemptible. 
Words  (&)  spoken,  have  frequently  been  deemed   overt  acts  of 
treason  for  which  the  speakers  have   suffered.     Two  persons  were 
executed  for  unguarded  expressions  in  the  reign  of  Edward  IV.  the 
one  a  citizen,  who  said  he  would  make  his  son  heir  to  the  Crown 
(alluding  to  the  sign  of  the  house  in  which  he  lived)— the  other,  a 
gentleman,  whose  favourite  buck  the  king  had  killed  in  hunting, 
whereupon  the  owner  wished  it,  horns  and  all,  in  the  belly  of  him 
who  had  counselled  the  king  to  kill  it,  and  the  king  being  his  own 
counsellor  on  the  occasion,  the  words  were  construed  *into 
[  *167  ]  a  treasonable  expression  against  the  king  himself. 

In  the  reign  of  Henry  the  Eighth,  not  only  was  a  peer 
of  the  realm  charged  with  having  uttered  treasonable  words,  which 
at  most  amounted  to  slander  of  his  ministers,  but  a  gentleman  was 
charged  with  having  treasonably  expressed  his-  displeasure  at  such 
proceedings  (/). 

kingdom,  but  that  the  treasure  and  riches  jesty.    This   libel   was   tried  before  Lord 

of  this   kingdom  were   misapplied,  wasted,  Kenyon  and  a  special  jury,  who,  immedi- 

and  dissipated  in  support  of  the  electorate  ately    after    a    speech  from   Mr.  Paine's 

of  Hanover  and  his  German  dominions.  counsel,  pronounced   the   defendant  guilty, 

The  defendant  was   found   guilty  of  this  without  any  address  or  direction  from  the 

libel;  wa>  fined  £5,  sentenced   to    the  pil-  judge.     The   defendant  never  appeared  to 

lory,  and  imprisoned  three  years.     Hilary  reCeive  the  judgment  of  the  court,  and  was 

Term,  31  Geo.  II.  1758,  K.  B.  MSS.     The  consequently  outlawed.     82  Geo.  III.  B.  K 

Kins;  v.  Dr.  John  Shebbcarc.  1792,  MS.     The  King  v.  Puine. 

The  King  v.  Paine.     This   was   an   in-         (/<•)   Hale's  PL   Cro.    C    115.     See  also 

formation    against   the  defendant,  filed  by  Hugh   Pine's  case,   Cro.  Car.  117,  where 

the  Attorney-General,  as    the   author  and  other     capital     convictions    for    speaking 

publisher  of  a  malicious  libel,  the  tendency  words  in  that  reign  are  cited, 
of  which  was  "  to  traduce  and    vilify  the  (/)   Surrey,  anno  tricesimo  Henrici  Oc- 

late  happy   revolution,  the  settlement   of  tavi    Henricus   Marchia,   Exon  pradilorie 

the    crown    and    regal    government,  as  by  dicebat.     1  like  well  of  the  proceedings  of 
law  established,  and  also  the  Bill  ot  Rights     Cardinal   Pool,  et  ulterius.     But   I  like 

the    legislature,    government,    laws,    ans  not  the  proceedings  of  this   realm,  and  I 

parliament  of  this   kingdom"     The  libel  trust  to  see  a   change  of  the  world,  et  ulte- 

likewise    contained    many    seditious    and  rius.     J  trust  once  to  have  a  fair  day  up- 
ssandalous  reflection  upon  his  present  ma-    on  those  knaves  which  rule  about  the  king, 


LIBELS  AGAINST  THE  KING.  167 

But  in  less  arbitrary  times,  the  legality  of  such  proceedings  has 
been  much  questioned  ;  and  the  rigor  of  the  doctrine  has  ;it  all 
events  been  greatly  mitigated.  It  has  been  most  hu- 
manely observed  (in),  that  words  may  be  Bpoken  'in  |  '168  ] 
heat,  without  any  intention  ;  or  be  mistaken,  perverted, 
or  misremembered  by  the  hearer;  their  meaning  depends  always 
on  their  connection  with  other  words  and  things  ;  they  may  Bignify 
differently,  even  according  to  the  tone  of  voice  with  which  they 
are  delivered ;  and  sometimes  silence  is  more  expressive  than  any 
discourse.  Since,  therefore,  there  can  be  nothing  more  equivocal 
and  ambiguous  than  words,  it  would  be  unreasonable  to  make  them 
amount  to  high  treason.  Of  this  opinion  were  Stamford,  Ld.  Coke, 
Ld.  Hale  (//),  Sir  Michael  Poster  (o),  and  Sir  William  Hlack- 
stone  (/;),  whose  opinion  has  just  been  cited  ;  and  in  the  reign  of 
Charles  the  First,  some  very  atrocious  words  having  been  spoken 
concerning  the  king  by  one  Pine,  all  the  judges  certified,  that 
"though  the  words  (7)  were  as  wicked  as  they  might  be,  yet  that 
they  were  no  treason  ;  for  unless  it  be  by  some  particular  statute, 
no  words  will  be  treasonable." 

It  seems  to  be  clear  (r),  however  that  words  joined  to  an  act  may 
explain  it,  and  that  words  of  persuasion  to  kill  the  king,  or 
manifesting  an  ^agreement,  or  consultation,  or  direction  [  *169  ] 
to  that  purpose,  are  sufficient  overt  acts  of  compassing 
his  death. 

It  has  frequently  been  held  that  words  committed  to  print  or 
writing,  and  published,  am  >unt  to  an  overt  act  of  treason,  in  proof 
of  the  compassing  the  king's  (s)  death ;  but  even  in  such  case  it 
seems  that  a  publication  is  not  necessary,  though  in  arbitrary  times, 
the  contrary  has  been  adjudged,  particularly   in    the  instances  of 

ct  ultrius.     I  trust  to  give   them  a    Buffet  berius,  and  others,  committed  many  assoss- 

onc  <l(iy.     Et  quod  Nicolaug  Carew,  Miles,  nations  at  Rome. 

malitiose,  murmuravii  indignatua   fuit;et        (/«)  -1  Black.  Comm.  79. 

dicebat  liac  verba    Anglieana.     I  marvel        (n)  1  Hale  111, 

greatly    that    the    indictment    against  the         (o)   Fost.  Cr.  L< 

Lord  Marijucsse   was  so  secretly  handled,         (/')    1  151 .  Com.  80. 

and  to  what  purpose,  for  the  Ufa  (<y)   Cro.  Car   125,     Bee  Hr.v.  PI.  Cr.  c. 

er  seen.     See  Hugh  Pine's  case,  Cro.  Car.  17,8.82,83,84,    85,    &c.     Fost.'Cr.    L. 

117,  where  these   and  a  number  of  other  200.     1  Hale  111,  323. 

precedent-    wore  collected   aud  considered         (r)  Haw.    I'l     Cr.    c.    17,  s.   37.     Fost. 

by  the  judges.  202. 

It  is  well  known  that,  under  the  pretext         (l)  2  BolL  89,  90.     Fos.  34G.     11  Mod- 

that  scandal   of  the  magistrates  amounted  crn  322.     1  St.  Tr.  077.  3    St.  Tr.  228.     5 

to  the  crimen  leesce  majeslatis,  Sylla,  Ti-  Bac.  Abr.  117. 

Vol.  II.  43 


169 


CRIMINAL  DIVISION. 


Peachum  (7),  a  clergyman,  and  of  Algernon  Sydney  (u)  ;  the  for- 
mer of  whom  was  convicted  for  treasonable  passages  in  a  sermon  never 
preached,  and  the  latter  for  some  speculative  opinions  contained  in 
papers  discovered  in  his  private  closet ;  but  so  unsatisfactory  did 
the  grounds  of  these  convictions  appear,  that  Peachum  was  not  ex- 
ecuted, and  the  attainder  of  Sydney  was  reversed. 
The  character  and  title  of  sovereign  are  guarded  by  the  following 

legislative  provisions.      The  st.    3    Ed.    I.    c.   34,  (x) 
[  *170  ]   enacts,  that  none  be  *so  hardy  to  tell  or   publish  any 

false  news  or  tales,  whereby  discord,  or  occasion  of  dis- 
cord, may  grow  between  the  king  and  his  people,  or  the  great  men 

of  the  realm  (7/)  . 
[  *171  ]        *By  6  Ann.  c.  7,  s.  7,  it  is  made  high  treason  to  affirm, 

by  writing  or  printing,  that  the  king  is  not  the  lawful 


(0  Cro.  Car.  125. 

(w)  Foster  108. 

(x)  The  stat.  3  Ed.  I.  c.  34,  and  2  R.  II. 
St.  1,  c.  5,  touching  telling  of  news,  were 
confirmed  by  the  stat.  1  and  2  Phil,  and 
Mary  c.  3,  (since  expired)  which  enacted, 
that  justices  of  peace  in  every  shire,  city, 
&c.  shall  have  authority  to  hear  and  de- 
termine the  said  offences,  and  to  put  the 
said  two  statutes  in  execution.     And  that 
if  any  person  shall  be  convicted  or  attaint- 
ed for  speaking  maliciously,  of  his  own  im- 
agination, any  false,  seditious,  and    slan- 
derous, news,  saying,  or  tales  of  the  king 
or  queen,  then  he  shall  for  his  first  offence 
be  set  on  the  pillory  in  some  market  place 
near    where   the  words  were  spoken,  and 
have  both  his  ears  cut  off,  unless  he  pay  to 
the  queen  an  hundred  pound    within  one 
month  after  judgment  given,  and  also  shall 
be    three    months  imprisoned;    and  if  he 
shall  speak  any  such  slanderous  and  sedi- 
tious news  or  tales,  of  the  speaking  or  re- 
port of  any  other,  then  he  shall  be  set  on 
the  pillory,  and  have  one  of  his  ears  cut  off, 
unless  he  pays  an  hundred  marks  to  the 
queen's  use  within  one  month,  after,  and 
shall  be  one  month  imprisoned;  and  if  he 
shall  do  it  by  book,  rhyme,  ballad,  letter,  or 
writing,  he  shall    have    his    right    hand 
stricken  off.     And  if  any  person  being  once 
convicted  of  any  offence  aforesaid,  do  after- 
ward offend  he  shall  be  imprisoned  during 


his  life,  and  forfeit  all  his  goods  and  chat- 
tels. And  see  4  and  5  Ph.  &  M.  c.  9.  1 
Eliz.  c.  6,  (now  expired.) 

(y)  See  the  stat.  1  W.  and  M.  st.  2,  c. 
2.  s.  '.).  By  a  statute  in  the  reign  of  H. 
VIII.  it  was  made  high  treason  to  write  or 
devise  by  words,  or  in  writing,  or  to  imag- 
ine, invent  or  attempt  any  bodily  barm  to 
be  done  to  the  king,  the  queen,  or  their 
heirs  apparent.  By  a  statue  of  Elizabeth, 
it  was  made  high  treason  to  intend  destruc- 
tion or  bodily  harm  to  the  queen,  or  to  af- 
firm that  the  laws  and  statutes  do  not  bind 
the  right  of  the  crown,  and  the  descent, 
limitation,  inheritance,  and  government 
thereof. 

And  whosoever  shall,  during  the  queen's 
life,  by  any  booke  or  worke,  written  or 
printed,  expressly  affirm,  before  the  same 
be  established  in  parliament,  that  any  one 
particular  person  is,  or  ought  to  be  heir 
and  successor  to  the  queen,  except  the  nat- 
ural issue  of  her  body,  shall,  for  the  first 
offence,  be  a  whole  year  imprisoned,  and 
forfeit  half  his  goods;  and  for  the  second, 
shall  incur  the  penalties  of  a  praemunire. 
These  laws  expired  on  the  demise  of  that 
queen.  By  an  act  in  the  reign  of  Ed.  VI, 
which  expired  with  that  king,  it  was  made 
high  treason  to  assert  in  print  or  in  writ- 
ing, that  he  was  not  supreme  head  of  the 
church. 


LIBELS  AGAINST  THE  KING.  171 

and  rightful  king  of  the  realm,  or  that  any  other  person  has  title  to 
the  same,  otherwise  than  according  to  the  Bill  of  Rights  (//),  the 
Act  of  Settlement  (z  >,  and  the  Act  of  Union,  or  that  parliament 
has  not  authority  to  limit  the  descent  of  the  crown. 

By  the  3(3th  Geo.  III.  c.  7,  it  is  enacted,  that  if  any  person  Bhall 
imagine  or  intend  death,  destruction,  or  any  bodily  harm  to  the  per- 
son of  the  king,  or  to  depose  him,  or  to  levy  war,  in  order  by  force 
to  compel  him  to  change  his  measures  or  counsels,  <fcc. 
and  shall  express  and  declare  *such  intentions  by  print'  |  *172  ] 
mg,  writing-,  or  any  overt  act,  he  shall  suffer  death  as  a 
traitor. 

And  that  if  any  one  by  writing,  printing,  preaching  or  other  '-peak- 
ing, shall  use  any  words  or  sentences  to  incite  the  people  to  hatred 
and  contempt  of  the  king,  or  of  the  government  and  constitution  of 
this  realm,  he  shall  receive  the  punishment  of  a  high  misdemeanor; 
that  is,  line,  imprisonment,  and  pillory,  and  for  a  second  offence,  he 
is  subject  to  a  similar  punishment,  or  transportation  for  seven  years 
at  the  discretion  of  the  court.  The  time  of  prosecution  under  the 
act  is  limited  to  six  months,  and  the  statute  docs  not  affect  any  pro- 
secution at  common  law,  unless  a  prosecution  be  previously  com- 
menced under  the  statute. 

At  common  law,  any  contempt  of  the  king's  person  amounts,  on 
principles  of  policy  too  obvious  for  observation  or  comment,  to  a 
high  misdemeamor.  Such  a  contempt  may  cither  consist  in  the  im- 
puting to  him  the  want  of  capacity  or  integrity  (a),  in  charging 
him  with  a  breach  of  his  coronation  oath  (6),  cursing  him,  wishing 
him  ill,  spreading  false  rumors  concerning  his  inten- 
tions (c), — or,  in  short  by  maliciously  asserting  'anything  [  *173  ] 
concerning  him,  which  tends ; to  lessen  him  in  the  esteem 
of  subjects,  weaken  his  government,  or  raise  jealousies  between  his 
people.  These  are  considered  as  high  contempts  and  misprisions, 
and  are  punishable  as  misdemeanors  at  common  law. 
.  So,  to  deny  the  king's  title  to  the  crown,  or  to  raise  doubts  con- 
cerning it,  in  unadvised  discourse,  would  amount  to  a  contempt  at 
common  law;  and  to  do  it  deliberately  and  advisedly,  if  it  did  not 
constitute  treason,  would  at  least  subject  the  offender  (d)  to  the 
penalties  of  a  praemunire. 

(y)  See  note  (y)  ante  p.  170.  (c)  See  8  1'..  I.  0.     I 

(z)  12  and  13  W.  IIL  o.  2.  (/)  Blaok.  Comm.    L28.     Haw.   PI.  Cr. 

(a)  Hawk.  P.  C.  o.  23.    4  Bl.  Com.  120.  c.  17.  s.  86,  supra  171. 

(/>)  Noy  105.      Haw.  PI.  Cr.o.  23.  s.  5. 


173  CRIMINAL  DIVISION. 

In  the  reign  of  Elizabeth  (e),  all  the  Justices  and  Barons  of  the 
Coif  assembled  in  Serjeant's  Inn,  concerning  a  book,  devised  by- 
one  Brown,  containing  the  following  passage,  u  Every  preacher  run- 
neth to  the  queen  now,  as  though  he  were  to  be  directed  by  her  to 
tarry  for  reformations  to  be  had  for  matters  of  the  church.  If  the 
magistrates  will  agree,  all  is  well ;  if  they  will  not,  they  are  not  of 
the  church,  and  it  is  a  shame  to  tarry  for  them,  or  for  a  parliament) 
or  proclamation."     And  it  was  held  by  all,  that  this  was  a  moving 

of  insurrection  and  sedition  (/). 
[  *174  ]  *ln  the  Digest  (#■)  of  the  Law  of  Libel  it  is  said,  that 
at  the  same  meeting,  Sir  Edmund  Anderson,  Ch.  J.  of 
the  Common  Pleas,  propounded  the  following  case  to  his  brethren: — 
A  person  had  caused  the  arms  of  the  queen  to  be  painted  upon  a 
post  in  a  church  in  Suffolk,  with  this  inscription  painted  near  them, 
"I  know  thy  works,  that  thou  art  neither  hot  nor  cold  ;  I  would 
thou  wert  either  either  hot  or  cold :  therefore,  because  thou  art  luke- 
warm, it  will  come  to  pass  that  I  will  spew  thee  out  of  my  mouth." 
But  the  justices  came  to  no  resolution. 

John  Wilkes  (li)  was  convicted  upon  an  information  filed  by 
the  Attorney-General  (f),  for  printing  and  publishing  a  malicious 
libel,  entitled  The  North  Briton,  No.  45,  tending  to  vilify  and  tra- 
duce the  king  and  his  government — to  impeach  and  disparage  his 
veracity  and  honor — and  to  represent  and  make  it  believed  that  his 
majesty's  most  gracious  speech,  delivered  from  his  throne  to  the  par- 
liament, on  Tuesday  the  19th  day  of  April,  1763,  con- 
[  *175  ]  tained  many  falsities  and  gross  *impositions  upon  the 
public  ;  and  that  his  majesty  had  suffered  the  honor  and 
dignity  of  his  crown  to  be  sunk  and  prostituted,  and  the  interests 
of  his  subjects  and  allies  to  be  treacherously  betrayed  ;  and  also  to 
render  the  king  and  his  government  contemptible  and  odious,  and 
to  excite  tumults,  commotions,  and  insurrections,  &c.  &c. 

An  information  (&)  was  filed  by  the  Attorney-General  against  the 
printer  and  proprietor  of  the  Morning  Chronicle  newspaper,  for 
publishing  the  following  paragraph,  with  a  malicious  intent  to  alien- 
ate from  the  king  the  affections  of  his  subjects  : — "  What  a  crowd  of 

(e)  Dig.  L.  L.  65.                   -  (g-)  D.  L.  L.  6G.     Sav.  49. 

(/ )  The  question  proposed  was,  wheth-  (h)  Dig.   L.   L.   69.     Informations  were 

er  the  publication  was  an   offence   within  also  filed  against  Kearsley   and  Williams, 

the  23d  Eliz.  c.  2,  which  was  a  temporary  for  printing  and  publishing  the  same, 

stat.  ;  but  under   the  construction   which  (i)  Charles  Yorke,  Esq. 

the  judges  put  upon  this  book,  it  was  a  li-  (k)  R.  v.  Lambert  and  Perry,  2  Camp, 

bel  at  common  law.  398. 


LIBELS  AGAINST  THE  KING.  175 

blessings  rush  upon  one's  mind,  that  might  be  bestowed  upon  the 
country,  in  the  event  of  a  total  change  of  system.  Of  all  monarchs, 
indeed,  since  the  revolution,  the  successor  of  George  the  Third  will 
have  the  finest  opportunity  of  becoming  nobly  popular." 

Lord  Ellenborough,  0.  J.  in  summing  up  to  the  jury  observed, 
"  The  first  sentence  admits  of  an  innocent  interpretation — 'What 
a  crowd  of  blessings  rush  upon  one's  mind,  that  might  be  bestowed 
upon  the  country,  in  the  event  of  a  total  change  of  system.'     The 
fair  meaning  of  the  expression,  'change  of  system,'  1  think,  is  a 
change  of  political  system,  not  a  change  in  the  frame  of 
'the  established  government,  but  in  the  measures  of  policy    [  *176  ] 
which  have  beeD  for  some  time  pursued.     By  total  change 
of  Bystem,  is  Certainly  not  meant  subversion  or  demolition  ;  for  the 
descent  of  the  crown  to  the  successor  of  his  majesty  is  mentioned 
immediately  after.     The  writer  goes  on  to  speak  of  the  blessings 
that  may  be  enjoyed  upon  the  accession  of  the  Prince  of  Wales  ;  and 
therefore  cannot  be  understood  to  allude  to  a  change  inconsistent 
with  the  full  vigor  of  the  monarchical  part  of  the  constitution.    Now 
I  do  not  know  that  merely  saying  there  would  be  blessings  from  a 
change  of  system,  without  reference  to  the  period  at  which  they  may 
be  expected,  is  expressing  a  wisli  or  a  sentiment  that  may  not  be 
innocently  expressed  in  reviewing  the  political  condition  of  the  coun- 
try.    The  information  treats  this  as  a  libel  on  the  person  of  his  ma- 
jesty, and  his  personal  administration  of  the  government  of  the  coun- 
try.    But  there  may  be  error  in  the  present  system,  without  any 
vicious  motives,  and  with  the  greatest  virtues,  on  the  part  of  the 
reigning  sovereign.     He  may  be  misled  by  the  ministers  he  employs, 
and  a  change  of  system  may  be  desirable  from  their  faults.     He  may 
himself,  notwithstanding  the  utmost  solicitude  for  the   happiness  of 
his  people,  take  an  erroneous  view  of  some  meat  question  of  policy, 
either  foreign  or  domestic.     I  know  of  but  one   Being  to 
'whom    error   may    not    be   imputed.      If   a   person    who    |    '177 
admits  the  wisdom  and   virtues  of  his  majesty,  laments 
that  in  the  exercise  of  these  he  has  taken  an  unfortunate  and  errone- 
ous view  of  the  interests  of  his  dominions,  I  am  not  prepared  to  say 
that  this  tends  to  degrade  his  majesty,  or  to  alienate  the   affections 
of  his  subjects.     1  am  not  prepared  to  say  thai  this  is  Libellous:  but 
it  must  be  with  perfect  decency  and  respect,  and  without  any  imputa- 
tion of  bad  motives.     Go  one   step   further,  and   say  or  insinuate, 
that  his  majesty  acts   from  any   partial  or  corrupt    view,  or  with  an 
intention  to  favor  or  oppress  any  individual  or  class  of  men,  and  it 

43* 


177  CRIMINAL  DIVISION. 

would  become  most  libellous.  However,  merely  to  represent  that 
an  erroneous  system  of  government  obtains  under  his  majesty's  reign, 
I  am  not  prepared  to  says  eyceeds  the  freedom  of  discussion  on 
political  subjects  which  the  law  permits.  Then  comes  the  next  sen- 
tence :  '  Of  all  the  monarchs,  indeed,  since  the  revolution,  the  suc- 
cessor of  George  the  Third  will  have  the  finest  opportunity  of  be- 
coming nobly  popular.'  This  is  more  equivocal,  and  it  will  be  for  you, 
gentlemen  of  the  jury,  to  determine  what  is  the  fair  import  of  the 
words  employed.  Formerly  it  was  the  practice  to  say,  that  words 
were  to  be  taken  in  the  more  lenient  sense  ;  but  that  doctrine  is  now 
exploded  ;  they  are  not  to  be  taken  in  the  lenient  or  more 
[  *178  ]  *severe  sense,  but  in  the  sense  which  fairly  belongs  to 
them,  and  which  they  were  intended  to  convey.  Now,  do 
these  words  mean,  that  his  majesty  is  actuated  by  improper  motives  ? 
or  that  his  successor  may  render  himself  nobly  popular  by  taking  a 
more  lively  interest  in  the  welfare  of  his  subjects  ?  Such  sentiments, 
as  it  would  be  most  mischievous,  so  it  would  be  most  criminal  to 
propagate.  But  if  the  passage  only  meant  that  his  majesty,  dur- 
ing his  reign,  or  any  length  of  time,  may  have  taken  an  imperfect 
view  of  the  interest  of  the  country,  either  respecting  our  foreign 
relations,  or  the  system  of  our  internal  policy ;  if  it  imputes  noth- 
ing but  honest  error,  without  moral  blame,  I  am  not  prepared  to  say 
that  it  is  a  libel. 

The  extract  read  at  the  request  of  the  defendants  does  seem  to 
me  too  remote,  in  point  of  situation,  in  the  newspaper,  to  have  any 
material  bearing  on  the  paragraph  in  question.  If  it  had  formed  a 
part  of  the  same  discussion,  it  must  certainly  have  tended  strongly 
to  show  the  innocence  of  the  whole.  It  speaks  of  that  which  every 
body  in  his  majesty's  dominions  knows-^his  majesty's  solicitude  for 
the  happiness  of  his  people  ;  and  it  expresses  a  respectful  regard  for 
his  paternal  viitues.  What  connection  it  has  with  the  passage  set 
out  in  the  information,  it  is  for  you  to  determine.  Tak- 
[  *179  ]  ing  that  passage  substantively,  and  by  itself,  it  is  a  *mat- 
ter  I  think,  somewhat  doubtful,  whether  the  writer  meant 
to  calumniate  the  person  and  character  of  our  august  sovereign. 
If  you  are  satisfied  that  this  was  his  intention,  by  the  application  of 
your  understandings  honestly  and  fairly  to  the  words  complained  of, 
and  you  think  they  cannot  properly  be  interpreted  by  the  extract 
which  has  been  read  from  the  same  paper,  you  will  find  the  defend- 
ants guilty.  But  if,  looking  at  the  obnoxious  paragraph  by  itself, 
you  are  persuaded  that  it  betrays  no  such  intention  ;  or  if,  feeling 


LIBELS  AGAIXST  THE  KING.  179 

yourselves  warranted  to  import  into  your  consideration  of  it  a  pi 
age  connected  with  the  Bubject,  though  considerably  distant  in  place, 
and  disjoined  by  other  matter,  yon  inter  from  that  connection  that 
this  was  written  without  any  purpose  to  calumniate  the  personal 
government  of  his  majesty,  and  render  it  odious  to  his  people,  yon 
will  find  the  defendant  not  guilty.  The  question  of  intention  is  for 
your  consideration.  You  will  not  distort  tin'  words,  but  give  them 
their  application  and  meaning,  as  they  impress  your  minds.  What 
appears  to  me  most  material  is  the  substantive  paragraph  itself;  and 
if  you  consider  it  as  meant  to  represent  that  the  reign  of  his  ma- 
jesty is  the  only  thing  interposed  between  the  subjects  of  this  country 
and  the  possession  of  great  blessings,  which  are  likely  to 
be  enjoyed  in  the  reign  of  his  successor,  and  thus  *to  [  *180  ] 
render  his  majesty's  administration  of  his  government 
odious,  it  is  a  calumnious  paragraph,  and  to  be  dealt  witli  as  a  libel. 
If,  on  the  contrary,  you  do  not  see  that  it  means  distinctly,  accord- 
ing to  your  reasoning,  to  impute  any  purposed  mal-administration  to 
his  majesty  or  those  acting  under  him,  but  may  be  fairly  construed 
an  expression  of  regret  that  an  erroneous  view  has  been  taken  of 
public  affairs,  I  am  not  prepared  to  say  that  it  is  a  libel.  There 
have  been  errors  in  the  administration  of  the  most  enlightened  men. 
I  will  take  the  instance  of  a  man,  who  for  a  time  administered  the 
concerns  of  this  country  with  great  ability,  although  he  gained  his 
elevation  with  great  crime,  I  mean  Oliver  Cromwell.  AVe  are  at 
this  moment  suffering  from  a  most  erroneous  principle  of  his  gov- 
ernment, in  turning  the  balance  of  power  against  the  Spanish  mon- 
archy, in  favor  of  the  House  of  Bourbon.  He  thereby  laid  the 
foundation  of  that  ascendency,  which,  unfortunately  for  all  mankind, 
France  has  since  obtained  in  the  affairs  of  Europe.  The  greatest 
monarchs  who  have  ever  reigned — monarehs  who  have  felt  the  most 
anxious  solicitude  for  the  welfare  of  the  country,  and  who  have  in 
some  respects  been  the  author-  of  the  highest  blessings  to  their  sub- 
jects, have  erred  ;  but  could  a  simple  expression  of  regret  for  any 
error  they  had  committed,  or  an  earnest  wish  to  see  that 
error  corrected,  be  considered  'as  disparaging  them,  or  [  *1S1  ] 
tending  to  endanger  their  government '(  Gentlemen,  with 
these  directions,  the  whole  subject  is  for  your  consideration:  Ap- 
ply your  minds  candidly  and  sprightly  to  the  meaning  of  the  pas- 
sage in  question  ;  distort  no  part  of  it  for  one  purpose  or  another, 
and  let  your  verdict  be  the  result  of  your  fair  and  deliberate  judg- 
ment (/)." 

(I)  The  defendant  was  acquitted. 


181  CRIMINAL  DIVISION. 

In  the  case  of  the  King;  v.  Harvey  (m),  it  was  held  to  be  an  in- 
dictable offence  to  publish  falsely  of  the  king,  or  of  any  other  person, 
that  he  labored  under  mental  derangement.  The  libel  was  as  fol- 
lows : — "  Attached  as  we  sincerely  and  lawfully  are  to  every  inter- 
est connected  with  the  sovereign,  or  any  of  his  illustrious  relatives, 
it  is  with  the  deepest  concern  we  have  to  state,  that  the  malady 
under  which  his  majesty  labors  is  of  an  alarming  description.  It 
is  from  authority  we  speak."  The  libel  then  stated  several  facts 
relating  to  the  king's  illness.  At  the  trial,  before  Abbott,  0.  J.  at 
the  London  Sittings  after  last  term,  the  publication  of  the  libel  was 
proved  in  the  usual  manner,  and  it  was  admitted,  by  the  counsel  for 
the  defendants,  that  th*e  libel  imported  that  the  king  labored  under 

insanity  ;  and  that  that  assertion  was  untrue  ;  but  it  was 
[  182  ]     urged  to  the  jury  that  the  defendants  *believed  the  fact 

to  be  true,  and  that  they  were  warranted  in  so  doing,  by 
rumors  which  had  been  very  prevalent  on  the  subject.  The  Lord 
Chief  justice,  in  his  address  to  the  jury,  after  stating  the  import  of 
the  publication,  proceeded  as  follows : — "  To  assert  falsely  of  his 
majesty,  or  of  any  other  person,  that  he  labors  under  the  affliction 
of  mental  derangement,  is  a  criminal  act.  It  is  an  offence  of  a  more 
aggravated  nature  to  make  such  an  assertion  concerning  his  majesty, 
by  reason  of  the  greater  mischief  that  may  thence  arise.  It  is  distinctly 
admitted  by  the  counsel  for  the  defendants,  that  the  statements  in 
the  libel  were  false,  in  fact,  although  they  assert  that  rumors  to  the 
same  effect  had  been  previously  circulated  in  other  newspapers. 
Here  the  writer  of  this  article  does  not  seem  to  found  himself  upon 
existing  rumors,  but  purports  to  speak  from  authority,  and  inasmuch 
as  it  is  now  admitted  that  the  fact  did  not  exist,  there  could  be  no 
authority  for  the  statement.  In  my  opinion,  the  publication  is  a  libel 
calculated  to  vilify  and  scandalize  his  majesty,  and  bring  him  into 
contempt  among  his  subjects.  But  you  have  a  right  to  exercise  your 
own  judgment  upon  the  publication,  and  I  invite  you  so  to  do.  The 
jury  found  the  defendants  guilty  (n). 

(wi)  2  B.  &  C.  257.  swer — "  The  man  who  publishes  slander- 

(n)  After  the  jury  had  retired  about  two  ous  matter,  calculated  to  defame  and  vilify 

hours,  they   returned    into   court,  and  the  another,  must  be   presumed    to  have  in- 

foreman  said  that  the  jury  wished  to  have  tended  to  do  that  which  the  publication  is 

the  opinion    of    the   Lord   Chief    Justice,  calculated  to  bring  about,  unless  he  can 

whether  it  was  or  not  necessary  that  there  show   the  contrary,  and   it   is   for   him  to 

should  be  a  malicious  intention  to  consti-  show  the  contrary.     There  may  indeed  be 

tute  a  libel.    To   this    question    the  Lord  innocent  publications  of  that  which,  in  its 

Chief  Justice  returned    the   following  an-  own  nature,  is  injurious  to  another,  as,  for 


LIBELS  AGAINST  THE  KING.  182 

*Ncxt  as  to  libels  on  the  government :  it  is  the  undoubt-     [  *1 83  ] 
ed  right  of  every  member  of  the  community  'to  publish     [  *184  ] 
his  own  opinions  on  all  Bubjects  of  public  and  common  in- 
terest, and  so  long  as  he  exercises  this  inestimable  privilege  candidly, 
honestly,  ;in. 1  sincerely,  with  a  view  to  benefit  society,  he  is  not  amen- 
able as  a  criminal.    This  is  the  plain  line  of  demarcation  :  when  this 
boundary  is  overstepped,  and  the  license  is  abused  cither  for  the  wan- 
ton gratification  of  private  malice,  iii  aiming  a  Btab  at  the  private 
character  of  a  minister,  ander  colm-  ami  pretence  of  discussing  his 
public  conduct,  or  where  either  public  men  or  their  measures  are  de- 
nounced in  terms  of  obloquy  and  contumely,  under  pretence  of  i 
posing  defects  and  correcting  errors,  but  in  reality  for  the  purpose 
of  obstructing  and  impeding  the  administration  of  public  affairs,  or  of 
alienating  the  affections  of  the  people  from  the  king  and  his  govern- 
ment, and  by  weakening  the  tics  of  allegiance  and  loyalty,  to  pave 
the  way  for  sudden  and  violent  changes,  sedition,  or  even  revolution  ; 
in  these  and  similar  instances,  where  public  mischief  is  the  object 
of  the  act,  and  the  means  used  are  calculated  to  effect  that  object, 
the  publication  is  noxious  and  injurious  to  society,  and  is  therefore 
criminal.     It  has  justly  been  observed  that  the  life  of  government  is 
reputation,  an  administration  destitute  of  the  support  and  encour- 
agement to  which  the  good  opinion  of  the  people  is  essen- 
tial, must  necessarily  be  timid  and  indecisive,  and  *consc-     [  *185  ] 
quently  weak  and  ineffectual. 

It  has  been  asserted  by  high  authority  (o),  that  "  every  freeman 
has  an  undoubted  right  to  lay  what  he  pleases  before  the  public— to 
forbid  this  is  to  destroy  the  freedom  of  the  press;  but  if  he  pub- 
lishes what  is  improper,  mischievous,  or  illegal,  he  must  take  the 
consequence  of  his  own  temerity." 

instance,  the  <h'Hvery  of  a  book,  containing  statement,  and  that  such  a  communication 

libellous  matter,  to  a  magistrate;  but  the  being  in  itself  mischievous  and  injui 

general  rule  is,  tint  the  person  must  lie  malice  must  necessarily  be  inferred,  since 

taken  to  hare  intended   to  do  that  which  apartymust,  in  pointoflav.be 

his  act  is  calculated  to  effect."    The  jury  to  have  intended  that  which  is  the  natural 

again  retired  for  about  three  hours,  and  consequence  of  what  he  does.     See  R.  ▼. 

then  returns  1  a  verdict  of  guilty,  but  re-  '             I   M.   and  8.   27                  R.  y. 

commended  the  defendant  to  mercy.     A  Farringi                    1676      /:   t.  Mazw> 

motion  was  afterwards  made    for  a  new  gora,  Bayley  on  Bills,  448.    Rusj.  audRy. 

trial,  upon  the  ground  of  a  supposed  mis.  c.  c  I..  291.    Bee  further,  as  to  contempts 

direction  on  the  part  of  the  Chief  Justice,  against  the  kin                           '  the  case 

but  the  court  were  of  opinion,  that  his  di-  of  ./.  8c  U,  (  r  publishln                   s.    O. 

reotion  was  right,  that   tl                 a  that  B.  June  Seas.  1788.    Haw.P.  C.  c.  28,  ft.  4. 

the  fact  was  communicated  from  authority  (o)  4  Bl.  Comm.  161. 
where  it  turned  out  to  be  false,  was  a  I 


185  CRIMINAL  DIVISION. 

On  the  trial  of  James  Perry  and  another  (/?),  on  an  information 
for  a  libel,  the  Attorney-General,  in  his  opening  to  the  jury,  observ- 
ed, "  From  the  bench  you  will  hear  laid  down,  from  the  most  re- 
spectable authority,  the  law  which  you  are  to  apply  to  those  facts. 
The  right  of  every  man  to  represent  what  he  may  conceive  to  be  an 
abuse  or  grievance  in  the  government  of  the  country,  if  his  intention 
in  so  doing  be  honest,  and  the  statement  made  upon  fair  and  open 
grounds,  can  never  for  a  moment  be  questioned.  I  shall  never  think 
it  my  duty  to  prosecute  any  person  for  writing,  printing,  and  publish- 
ing, fair  and  candid  opinions  on  the  system  of  the  government  and 
constitution  of  this  country,  nor  for  pointing  out  what 
[  *186  ]  *he  may  honestly  conceive  to  be  grievances,  nor  for  pro- 
posing legal  means  of  redress." 
It  would  exceed  the  proposed  limits  of  this  treatise,  to  cite  cases 
in  detail  under  this  division  ;  every  case,  indeed,  falling  within  it,  is 
too  intimately  involved  in  its  particular  circumstances  to  admit  of 
any  abstract  rules  less  general  than  the  elements  which  have  been 
laid  down  as  essential  to  such  an  offence,  the  plain  intrinsic  tenden- 
cy (#)  °f  the  communication  to  produce  public  disorder,  and  the 
malicious  intention  of  its  author  (r). 

(pj  Before  Ld.    Kenyon,    1793.       See  of  government.     Sid.  219.    Rol.  773.  Bac. 

Ridgway's  Collection,  &c.  2  vol.  371.  Ab.  tit.  Libel,  450. 

(<?)  See  R.  v.  Beare,  12  Mod.  221.    Ld.  Lawrence  was  convicted  upon  an  infor 

Ray.  418.  Dig.  L.  L.  19,  121.     R.  v.  Bed-  mation   charging  him  with  having  sent  a 

ford,   2  Str.   789.     Rex  v.    Owen,  K.  B.  letter  to  Sir  John  Pigot,  desiring 

MSS.  Dig.  L.  L.  67.     R.  v.  Lawrence,  12  him  to  *moderate  his    zeal,  for   [  *187  ] 

Mod.   311.     R.    v.    Bliss,    Clerk,    K.  B.  that  the    king    (meaning    King 

MSS.  5  G.  1  Dig.  L.  L.  122.  James  II.)  would  soon   be   restored;   and 

(r)  A  person  delivered  a  ticket  up  to  that  for  further  satisfaction  herein,  he 
a  minister  after  a  sermon,  wherein  he  de-  would  soon  hear  that  many  lords  would 
sired  him  to  take  notice,  that  offences  repair  to  him  to  France,  what  to  do  he 
passed  now  without  control  from  the  civil  might  guess.  The  defendant  was  fined 
magistrate,  and  to  quicken  the  civil  magis-  forty  marks.  12  Mod.  311.  Dig  L.  L.  121. 
trate  to  do  his  duty,  &c.  This  was  held  to  John  Tutchin  was  convicted  upon  an  in- 
be  a  libel,  though  no  magistrates  in  par-  formation  for  publishing  several  libels  con- 
ticular  were  mentioned,  and  though  it  was  taining  the  following  paragraphs  : — 
not  averred  that  the  magistrates  suffered  "If  we  may  judge  by  our  national  mis- 
these  vices  knowingly.  And  the  ground  of  carriages,  perhaps  no  nation  has  felt  the 
the  conviction  has  been  stated  to  be,  that  influence  of  French  gold  more  than  Eng- 
general  misrepresentations  of  the  govern-  land;  and  worthy  it  is  of  our  greatest  la- 
ment or  state  of  the  nation,  or  mutinous  mentation,  that  our  dear  country  should 
hints,  tend  to  excite  discontent  and  sedition  be  thus  weakened  by  men  of  mercenary 
in  the  people,  and  that  the  generality  of  principles,  when  countries,  inferior  to  us 
the  reflection  made  it  the  moie  dangerous,  in  strength  and  riches,  are  secured  from 
since  it  had  a  bad  effect  on  the  whole  frame  attempts  of  this  nature  only  by  the  fidelity 


CONTEMPTS,  ETC. 


185 


•Next,  as  to  publications  against  the  administration  of     [  *18G  ] 
justice. 


of  their  people.  What  is  the  reason  that 
French  gold  baa  nut  affected  Holland  as 
well  as  England,  but  that  their  ministry  is 
such  as  is  entirely  in  the  interest  of  their 
country,  an  1  altogether  incorruptible- 
They  prefer  men  that  are  knowing  in  their 
posts,  and  are  active  in  business,  when  in 
England  we  find  out  offices  fur  men,  and 
not  men  for  offices.  By  this  and  by  pre- 
ferring men  by  interest  ami  favor,  have 
the  excise,  the  customs,  and  other  branches 
of  the  revenue,  intolerably  sunk,  and  by 
this  means  has  the  navy  of  England,  our 
chief  support,  beeu  hitherto  perfectly  be- 
witched. And  can  Lewis  spend  his  money 
better,  than  in  getting  men  into  office  in 
England,  who  are  either  false  or  ignorant 
in  the  business,  or  who  are  his  friends." 

Ld.  Holt,  C.  J.   in   summing   up   to    the 
jury,  observed,  "  To  say  that  corrupt  offi- 
cers are  appointed  to  administer   affairs   is 
certainly  a  reflection   on   the   government. 
If  persons  should   not  be  called  to  account 
for  possessing  the  people  with  an  ill  opinion 
of    the   government,    no   government    can 
subsist;    nothing  can    be    worse   to   any 
government,  than  to  endeavor  to  procure 
animosities   as   to   the   management  uf  it; 
this   has   always   been   looked    upon   as  a 
crime,  and  no  government   can 
[  *188  ]  be  *safe  unless   it   be   punished. 
Now  you  are  to  consider,  wheth- 
er these   words   I  have  read  to  you,  da  not 
tend  to  beget  an  ill  opinion  of  the  adminis- 
tration  of   the   government."     5   St.    Tr. 
532.  A.D.  704. 

John  Clarke  was  found  guilty  upon  an 
information,  charging  him  with  hiving 
printed  and  published  a  malicious  libel, 
intituled  "  .Mist's  Weekly  Journal,"  con- 
taining false,  malicious,  and  seditious  re- 
flections on  his  late  and  present  majesty, 
by  drawing  odious  parallels,  and  thereby 
malieiouMy  and  falsely  insinuating  our 
government  to  be  tyrannical,  and  the  min- 
istry corrupt  and  abominable.  0  St.  Tr. 
273.  A.  1).  1729. 

Richard  Franklin  was  found  guilty  upon 


an  information,  charging  him  with  having 
printed  and  published  a  malicious  libel, 
intituled  ' -N  The  Country  Journal, 

Ot  t ht_-  Craftsman,"  Containing  an  extract 
from  a  private  letter  from  the  Hague,  with 
intent  {inter  alia)  to  scandalize  and  vilify 
the  administration  of  his  majesty*!  govern- 
ment uf  this  kingdom,  and  his  principal 
officers  an  1  ministers  of  state  as  persons  of 
no  integrity  and  ability,  and  as  enemies  to 
the  public  good  of  this  kingdom. 

The  information  stated,  "  That  a  treaty 
of  peace  having  been  concluded  bet*. 
his  Majesty  George  the  Second  and  the 
Kings  of  France,  Spain,  &C.  and  that  the 
defendant  well  knowing  the  premises,  &<:. 
and  contriving  to  disturb  the  happy  >tate 
of  the  public  peace  and  the  tranquility  of 
the  kingdom,  &o.  and  to  bring  his  present 
majesty's  treaty  of  peace  into  contempt 
and  disgrace,  and  also  to  detract,  scanda- 
lize, traduce,  and  vilify  the  administration 
of  his  present  majesty's  government  uf  the 
kingdom,  and  his  priucipal  officers  and 
ministers  of  state,  and  to  represent  them 
as  persons  of  no  integrity  or  ability,  and 
as  enemies  of  the  public  good  of  the  king- 
dom, &c  The  information  then  proceeded 
to  the  publication  of  the  libel,  and  set  out 
the  libellous  matter,  which  was  to  the  effect 
of  the  above  allegations. 

The  defendant's  counsel  were 
Mr.  Fasakerley  and  Mr.  'Boutle.  [  *189  ] 
After  the  evidence  had  concluded 
on  the  part  of  the  crown,  Mr.  Fazakerley 
offered  to  prove  some  of  the  c  ntenta  of  the 
libel  to  be  true,  lie  wis  immediately  in- 
terrupted by  Lord  Raymond,  Lord  C.  J. — 
••  \-  •  pj  ir  saying  that  you  can  prove 
what  is  oharged  on  the  defendant  to  be 
true,  it  is  my  opinion  that  it  is  not  material 
whether  the  foots  charged  in  a  libel  be  true 
or  false,  if  the  proseoution  be  by  indictment 
or  information,  and  that  writing  and  print- 
ing may  be  libellous,  though  the  scandal  is 
not  charged  in  direct  tern.-,  but  only 
ironically."  His  Lordship  added,  "  even 
a  private   man's   character   is   not   to  be 


187 


CRIMINAL  DIVISION. 


Contempts  against  the  King's    Judges,  and   scandalous  reflec- 
tions on    their    proceedings,    fall  within  the    same  consideration 


scandalized,  either  directly  or  indirectly, 
because  there  arc  remedies  appointed  by 
law,  in  case  he  has  ipjured  any  person 
without  maliciously  scandalizing  him  in 
his  character.  And  much  less  is  a  magis. 
trate,  minister  of  state,  or-  other  public 
person's  character*  to  be  stained,  either 
directly  or  indirectly.  And  the  law  reck- 
ons it  a  greater  offence,  when  the  libel  is 
pointed  at  persons  in  a  public  capacity,  as 
it  is  a  reproach  to  the  government  to  have 
corrupt  magistrates,  substituted  by  his 
majesty,  and  tends  to  sow  sedition  and  dis- 
turb the  peace  of  the  kingdom.  Therefore, 
I  shall  not  here  allow  of  any  evidence  to 
prove  that  the  matters  charged  in  this  libel 
are  true,  for  I  am  only  abiding  by  what 
had  been  formerly  done  in  other  cases  of 
the  like  nature." 

The  observations  of  Sir  Philip  Yorke, 
Attorney-General,- on  the  part  of  the  pros- 
ecution, seems  to  have  been  afterwards 
adopted  by  the  court.  He  observes, 
"There  is  another  thing  mentioned,  which 
i3,  that  if  this  Hague  letter  was  construed 
a  libel,  it  would  tend  to  the  utter  destruc- 
tion of  the  liberty  of  the  press.  My  lord, 
I  am  really  at  a  loss  to  know  what  sort  of 
liberty  they  mean.  I  hope  they  do  not 
mean  a  licentious  and  unbounded  liberty  to 
libel  and  scandalize  his  majesty  or  his 
principal  officers  and  ministers  of  state,  or 
his  magistrates,  or  even  any  of  the  mean- 
est of  his  subjects,  whenever  they  think  fit. 
Gentlemen,  I  would  have  you  to  know  that 
even  the  prerogative  of  the  king  is  founded 
upon  law,  and  limited  by  it, 
[  *190  ]  *and  so  are  all  things  relating  to 
his  subjects,  and  it  cannot  be 
supposed  that  a  printer  only  is  exempted, 
and  at  liberty  to  use  his  press  for  what 
purposes  he  pleases.  If  he  is,  I  desire 
that  the  defendant's  counsel  would  point 
out  that  law.  No,  the  law  is  not  so  absurd 
as  to  allow  such  a  liberty  of  the  press. 
The  liberty  meant  is  to  be  understood  of  a 
legal  one.  He  may  lawfully  print  and 
publish  what  belongs  to  his  own  trade,  but 


he  is  not  to  publish  anything  reflecting  on 
the  character  and  reputation  and  adminis- 
tration of  his  majesty  or  his   ministry  or 
his  ministers,  nor  jet  to  stain  the   charac- 
ter  or  reputation   of    any  of  his  subjects. 
For,  as  I  said  before,  to  scandalize   and  li- 
bel people  is  no  part  of  his  trade;  so  I  say 
it  is  only  that  liberty  of  the  press  which  he 
is  to  use  that  is  regulated   by  law  and  sub- 
jected to  it,  and  if  he  breaks  that  law  and 
exceeds   that  liberty  of  the  press,  he  is  to 
be  punished  for  it,  as  well  as  for  breaking 
other   laws  or  liberties.     And,  gentlemen, 
though  it  has  been  insinuated  to  you,  from 
the  other  side,  that  the  making  such  things 
a  libel  came  from  the  Star   Chamber,  yet  I 
must  tell  you,  that  the   printing  such   de- 
famatory  expressions  or   slanderous   news 
was  deemed  a  libel,  and  punished   accord- 
ingly, long  before  the  Star  Chamber.     It  is 
a  law  made  in  1275,  in  the   third  of  King 
Edward  the   First  intitled  'An  Act   that 
none  shall  report  slanderous  news  whereby 
discord  shall   artee,'  &c.  &c.     So,  gentle- 
men, you  see  that   this  law  of  libel  is  not  a 
new  law,  or  one  that  came  from  the    Star 
Chamber,  but  one  that  has  been  almost  of 
five  hundred   years   standing;  therefore  I 
hope  you  will  not   suffer  yourselves   to  be 
amused   by   such  things.      The   Court  of 
Star   Chamber,   punished  without  juries, 
but  though  juries  were  taken  away,  jet  the 
law  remained   the  same   as   to  libels  and 
crimes.     So  I  hope  it   appears  to  you  to  be 
very  plain,  that  the   liberty  of  the  press  is 
limited  and  governed  by  law,  and  that  the 
piw   sets   limits   both   to   the  king  and  his 
subjects  " 

The  defendant  after  a  charge  from  the 
Chief  Jus' ice,  who  admitted  the  full  force 
and  propriety  of  the  Attorney- 
General's  *address,  was  found  [  *191  ] 
guilty.  The  term  following,  he 
was  sentenced  to  pay  a  fine  of  £800,  to  be 
imprisoned  for  one  year,  and  to  find  se- 
curity for  his  good  behavior  for  seven 
years,  &c.  No  arrest  of  judgment  was 
ever  moved  for,  or  writ  of  error  brought 


CONTEMPTS,  ETC. 


188 


with  the  last  mentioned  class  of  offences,  Bince  nothing  tends  more 
to  disturb  public  order  than  to  infiu  ions  concerning  t;. 

ministration  of  justice. 

Offences  of  this  nature  may  consist  eith  >r  in  the  more  gross  no- 
tation of  decency,  by  makin  if  contumelious  and  insolent  lan- 


u|inii   the  no  «  1.    Btate  Trials,  toL  0,  p. 

The  King  v.  Home. — This  wis  an  in- 
formation filed  againsl  the  defendant  by  his 

rn  ij>  -      -     \  G       •  il   "ii   behalf  of 

his   in  ijesty,  for   writing,   printing,    and 
publishing  two  libels. 

The  first  count  of  the  information  - 
thai  the  a  ud  John  II":  ne  being  a  wi 
malicious,  seditious,  an  1  ill-disposed  per- 
soti,  and  being  greatly  disaffected  to  our 
said  present  sovereign  lord  the  king,  and 
to  his  administration  of  the  government  of 
this  kingdom,  and  tin'  dominions  thereunto 
aging,  and  wickedly,  maliciously,  and 
Seditiously  intending,  devising,  and  con- 
triving to  .stir  up  and  excite  discontents 
an  1  seditions,  among  his  majesty's  subjects, 
and  to  alienate  and  withdraw  the  affection, 
fidelity,  and  allegiance  of  his  sail  majesty's 
subjects  from  his  said  majesty,  and  to  in- 
sinuate and  cause  it  to  be  believe  1,  th  it 
divers  of  his  siid  majesty's  innocent  and 
deserving  Bubjeots  had  been  inhumanly 
murdered  by  his  Bai  1  majesty's  troops  in 
the  province,  oolony  or  plantation  of  the 
M  issaohusetti  B  iy  in  New  England,  in 
America,  belonging  to  the  crown  of  Great 
Britain  and  unlawfully  and  wickedly,  to 
se  l.i  c  and  en  sourage  his  said  maj<  - 
subjects  in  the  ;-ai  1  province,  colony  or 
plantation,  to  resist  and  oppose  his  ma- 
jesty's government,  "ii  the  8th  d.iv  of  June, 
ill  the  15th  year  of  the  reign,  &0.,  with 
f  roe  and  arms,  ;it  1.  in  Ion  aforeS  lid,  ill  tli" 
parish  of  St.  .M  i; y  1.  -N  W,  in  the  ward  "i" 
Cheap,  wickedly,    malioiously,   an  1 

tioiisly    did  write    and    publish    and 

and  prooure  t"  be  written,  and  publish 
certain  false,    wicked,    mal  nda- 

lous.  and  Seditious  libel,  of  and  Ot  □  'Thing 
his  said  majesty's  government  and  (lie  em- 
ploy tnent  of  his  troops  according  to  the  te- 

Vol.  II.  44 


nor  and  effect  following: — ••  King's  Arms 
Tavern,  Cornhill,  June  Tth,   1 770.     At  a 

special  meeting,  this  d  iy,  of 
several  members  uf  'the  Cohsti-  [  ' 
tutional  Society,  daring  an  ad- 
journment, a  gentleman  pr  post  1  that  a 
subscription  should  be  immediately  entered 
into,  (by  such  of  the  members  present  who 
might  approve  the  purpose,  for  raising  tho 
sum  of  £100  to  be  applied  to  the  relief  of 
the  widows,  orphans,  an  1  aged  parents  of 
our  belove  1  American  fellow  subjeotS  who 
faithful  to  t he  character  of  Englii 
preferring  death  to  Blavery,  were  for  that 
reason  only  inhumanly  murdered  by  the 
king's  (meaning  his  s  ii  1  m  ijesty's)  troops 
at  or  near  Lexington  and  Concord,  in  the 
province  of  Massachusetts,  (meaning  the 
said  province,  colony,  or  plantation  of 
Massachusetts  Bay  in  New  England,  in 
America,)  on  the  19th  of  last  April,  which 
sum  being  immediately  collected,  it  was 
thereupon  resolved  that  Mr.  Home  (mean- 
ing himself  the  Baid  John  Home,)  do  pay 
to-morrow  into  the  bands  of  Messieurs 
Brownes  and  Collison,  on  the  account  of 
Dr.  Franklin,  the  said  sum  of  £100,  and 
th  a  Dr.  Franklin   be   n  ■  apply 

the  same  to  the    above  mentioned  purpose. 

John   Borne   (meaning  himself  tl 

John  Borne,)  in  contempt  of  our  sail  lord 

.   the  1  iws  0f 

this  kingdom,  to  the  evil  and  pernicious 
example  of  all   others    in    the    like 

fending,  and  also  against   the  peao 

said    i"  the  king,  his 

orown  and  dignity." 

There  were  other  counts  in   the  inl 

tion,  charging  the  said  John  Ho'rne  with 

causing  the  same  libel  to  be  printed  in  tho 
London  Packet,  OX  New  Lloyd's  livening 
Post,  and  Morning  Chronicle,  or  London 
advertiser. 


191 


CRIMINAL  DIVISION. 


guage  in  the  face  of  the  court,  or  in  the  publishing  of  reflections  on 

the  purity  of  its  proceedings  tending  to  obstruct  the  course  of  justice. 

Generally,  any  contemptuous  or  contumelious  words,  when  spoken 

to  the  judges  of  any  courts,  in  the  execution  of  their 

[  *195  ]     office,  are  indictable  (s).     As  if  one  give  the  lie  to  a 


The  defendant  pleaded — Not  guilty. 
The  information  was  tried  at  the  Sit- 
tings in  London  after  Trinity  Term,  1777, 
before  Lord  Mansfield,  by  a  special  jury, 
and  the  defendant  found  guilty  of  all  the 
offences  charged  in  the  information. 

The  Courts  of  K.  B.  afterwards  passed 
the  following  sentence  upon  Mr.  Home  : — 
"  To  pay  a  fine  of  £200,  to  be  imprisoned 
one  year,  and  to  give  securities  for  his 
good  behavior  for  three  years."  After- 
wards the  defendant  brought  a 
[  *193  ]  writ  of  *error  in  the  House  of 
Lords,  but  the  judgment  of  the 
King's  Bench  was  affirmed.  Cowp.  Rep. 
672,  and  11  St.  Tr.  2G4.  ;  see  also  R.  v. 
Burdcit.  4  B.  and  A.  115,  314. 

The -fifing  v.  Cobbett. — This  was  an   in- 
formation  filed    by   the    Attorney -General 
against  the  defendant,  for  a  libel  publish- 
ed in  the  "  Weekly  Register,"  in  the  form 
of  a  letter  signed    Juverna.     It  was  a  libel 
upon  the  ad  ministration  of  the  Irish  gov- 
ernment,   and    upon  the   public  character 
and  conduct  of  the   Lord  Lieutenant  and 
Lord  Chancellor  of  Ireland.     Mr.  Cobbett 
was  not  the  author,  but  merely   the  pub- 
lisher of  this  letter.     After   the  libel  hid 
been  proved,  and   the  defendant's  counsel 
heard,  Lord  Ellenborough,  in  his  address 
to  the  jury,  observe!,  "the  law  of  Eng- 
land is  a  law  of  liberty  ;  and,  consistently 
with  this  liberty,  we  have  no  imprimatur, 
there  is  no  such   preliminary  license  neces- 
sary.    But  if  a  man   publish  a  paper  he  is 
exposed  to  penal  consequence,    as   he  is  in 
doing  every   other  act,  if  it   tend  to  the 
prejudice  of  any  individu  il.     It  is  no  new 
doctrine,  that   if  a    publication-  be   calcu- 
lated to  alienate  the  affections  of  the  people, 
by  bringing  the  government  into  disesteem, 
whether  the  expedient  be  by  ridicule  or  ob- 
loquy, the  person  so  conducting  himself  is 
exposed  to  the  inflictions  of  the  law.     It  is 
a  crime.     It  has  ever  been  considered  as  a 


crime,  whether  wrapt   in  one   form  or  an- 
other.    The  case  of  the  King  v.  Tutchin, 
decided  in  the  time   of  Lord   Chief  Justice 
Holt,  has  removed  all    ambiguity  from  this 
question  ;  and  although  at  the  period  when 
that  case  was  decided,  great  political  con- 
tentions existed,  the   matter  was  not  again 
brought  before  the  judges  of  the  court  by 
any  application  for   a  new  trial."     Again, 
his  lordship  says,  "  No  man  has  a  right  to 
render  the  person   or  abilities  of  another 
ridiculous,  not  only  in   publications,  but  if 
the  peace  and  welfare  of  individuals   or  of 
society  be  interrupted,  or  even  exposed  by 
types  and  figures,  the  act  by  the  Uw  of 
England  is  a  libel."     And  again,  "  It  has 
been  observed,  that   it    is   the  right  of  the 
British  subject    to  exhibit  the  folly  or  im- 
becility of  the  members  of  the  government. 
But  gentlemen,  we  must  confine  ourselves 
within    limits.     If,  in  so  doing,  individual 
feelings  are  violated,  there   the    line  of  in- 
terdiction begins,  and   the  offence  becomes 
the  subject  of  penal   visitation."     The  de- 
fendant  was    found  guilty,  but  not  called 
up  for  judgment,  having  redeemed  himself 
by  giving  up  the  author  of  the  libel,  who 
was  immediately  prosecuted  and  convicted. 
E.  T.  K.  B.  1801.      The  King  v.  Johnson, 
7  East.  G5. 

(s)  1  Sid.  144.  Str.  420.  2  Rol.  Ab. 
78.  In  The  King  v.  Revell,  1  Str.  420, 
it  was  held  that  the  words  "you  are  a 
rogue  and  a  liar,"  spoken  to  a  justice  of 
the  peace  in  the  execution  of  his  office, 
were  indictable,  and  that  such  words  spoken 
of  him  in  his  absence  would  also  have  been 
indictable.  See  also  R.  v.  Darby,  3  Mod. 
139. 

Other  cases  may  be  referred  to,  in  which 
the  same  doctrine  has  been  repeated  in  the 
judgments  of  the  court  upon  defendants 
convicted  of  public  libels.  In  the  case  of 
The  King  v.  Cobbett,  K.  B.  1810,  for  a  li- 
bel, tending  to  excite  disaffection   in   the 


CONTEMPTS,  ETC. 


195 


judge  of  a  court  lect,  (t)  in  the  face  of  the  court  ;  or,  being  ad- 
monished by  him  to  pull  off  his  hat,  («),  Bay,  M  1  donot  value  what 
you  can  do  ;"  or  tell  liiui  in  the  face  of  the  coart,  that  he  is  for- 
sworn <  ./•>,  or  call  him  a  fool  (y),  or  say,  ••  If  1  cannot  have  jus- 
tice here,  1  will  have  it  elswhei 

When  reflecting  words  are  spoken  of  the  judges  of  the  superior 
courts,  at  Westminster,  the  Bpeaker  is  indictable  both  at  common 
law  and  under  tho  Mutates  of  Scandalum  Ifagnatum,  whether  the 
words  relate  to  their  office  or  not. 

With    respect  to  inferior    magistrates,  such  as  justices    of   the 
peace,  it  seems  to  bo  clear,  on  the  authorities,  that  abusive  ami  de- 
famatory words  spiilceii    of   them  in   their  absence,  and 
which  do  not  relate  to  the  execution  of  their  office,  'arc         '  19  i  J 
not  indictable  (a).     And  even  although  the  words  affect 
them  generally  in  their  office,  as  where  they  impute  want  of  ability, 
capacity,  or    integrity,  it   seems  thai  they  are  not  indictable.     For 
though  the  contrary  seems  to  have  been  held  in  Darby  s 
case  (£),  *yet  that  decision  has   been  materially    im-  l'.'T  ] 


army,  and  the  cases  of  The  King  v.  Fish- 
er, The  King  v.  Lnvcl,  The  King  v.  Gale 
Joifs,  and  the  King  v.  Drunkard*,  the 
same  general  principles  were  expounded 
and  applied.  See  also  The  King  v.  Bur- 
detl,  4  B.  and  A.  115,  314. 

(/)  ()\v.  118.  t  Mo.  470.     Cro.  Eliz.  581. 
(»)   Ray.  78.'   1  Keb.  451,  165. 
(.r)   2  ltol.  Ab.   78. 
(;/)  Cro.  Eliz.  78. 
(:)   1  Bid.  144.     Keb.  508. 
(a)  Sec  the  following  note. 
(/<)    3    Mod.   189.      (S.    C.    Comb,   65- 
Carth.  14.)    The  defendant  was  indicted  for 
■peaking  scandalous  words  of  Sir  J.  rlearle, 
a  Justice  of  the  Peace,  viz.     "Sir  John 
Kearle  is  a  buffleheaded  fellow  and  doth  not 
understand  the    law  ;  lie  is   not    tit  to  talk 
with  me  ;  I  hive  baffled  him,  and   he  hath 
not  dune    my  client  justice."       And    the 
court  is  reported  to  hive  held,  that  though 
the    words    were    not    actionable,  yet  they 
were  indictable  for  the  reason  given  in  the 
text.     In  the  subsequent  bom  of  the  Queen 
v,Langley,  Sulk.   697,  on  an  indictment 
for  Baying  to  the  Mayor  of  Salisbury,  you 
are  a  rogue  and  a  rascal  ;    Holt,  <'.  .' .  held 
that  the   words  were    not   indictable,  the 


mayor  not  being  in  the  execution  of  his 
office  nor  a  patent  officer  ;  and  that  it  did 
not  appear  that  the  mayor  was  a  j  i-ticc  of 
the  peace,  at  least,  not  by  commission 
from  the  king  ;  yet  that,  if  the  word?  had 
been  written,  an  indictment  woul  I  h  ive 
lain.  Et  per  totam  curiam,  words  th.it 
directly  tend  to  a  breach  of  the  peace,  as 
if  one  man  challenge  another,  are  indicta- 
ble ;  and  the  commission  of  oyer  and  ter- 
miner de  propal  itionibus  verborum  is  to 
bo  construed  of  words  against  the  govern- 
ment or  scandalum  mngnatum,  &0.  ;  but 
for  these  petit  offences  which  are  contra  bo- 
nos  mores,  the  law  has  another  provision, 
by  requiring  surety  of  'he  peace  and  good 
behavior,  in  default  whereof  the  ma 
trate  may  commit  him,  when  spoken  out  <f 
court  ;  and  when  in  court,  the  magistrate 
ma;,  it  him  and 

line  linn  fur  the  contempt. 

In  the   report    of  the   same--..  I    M    i 
125,  it  is  stated  that  •  •  delibera- 

tion they  adjudge  1   the  woi  I  io- 

di  't  il'le,    for    it   is    not    so    muefa 
that  he  was  in  the  execution  of  I 

a  justice  of  the  peace.     Indeed  had  they 
been  put  into  writing,  they  would  be  a  libel 


197 


CRIMINAL  DIVISION. 


peached  by  other  authorities.     Indeed  the  reason  there 
[  *198  ]     given  for  *holding  such  words  to  be  indictable,  that  it  is 


punishable  either  by  indictment  or  actions; 
but  they  are  but  loose  and  unmannerly 
words,  like  those  spoken  of  an  alderman  of 
"Hull,  "  when  he  puts  on  his  gown,  Satan 
enters  into  it,"  which  Trere  adjudged  not 
indictable  in  Kelynge's  time:  (1  Mod.  85.) 
You  are  a  forsworn  mayor  and  have  bro- 
ken your  oath,  not  indictable,  (Stiles, 
251.)  And  binding  him  to  good  behavior 
is  sufficient  to  secure  the  authority  of  may- 
ors; but  that  must  be  done  instantly,  ac- 
cording to  Dr.  Bonham's  case,  (Stiles, 
251,)  and  Holt,  C.  J.  said,  that  words 
which  led  directly  to  a  breach  of  the  peace 
may  be  indictable;  otherwise  to  encourage 
indictments  for  words  would  make  them  as 
uncertain  as  actions  for  words  are. 

Again  in  the  case  of  The  Queen  v. 
Wrighlson,  Salk.  698,  which  was  an  in- 
dictment for  saying  of  Sir  Rowland  Gwyn, 
a  justice  of  the  peace,  in  discourse,  con- 
cerning a  warrant  made  by  him;  "  Sir 
Rowkind  is  a  fool,  an  ass,  and  a  coxcomb, 
for  making  such  a  warrant,  and  he  knows 
no  more  than  a  stick-bill;  "  the  court  held, 
on  demurrer,  that  there  was  a  breach  of 
good  manners,  for  which  he  might  be  bound 
to  the  good  behavior,  yet  there  was  no 
indictable  offence.  And  in  this  case, 
many  of  the  former  authorities  were  re- 
ferred to,  viz.  2  Keb.  494.  Hiitt.  131.  1 
Cro.  862.  3  Mod.  139.  1  Vent.  169,  and 
R.  v.  Selby,  Mich.  4  Ann.  K.  B.  where  the 
defendant  was  indicted  for  the  words, 
"  He  is  not  fit  to  be  a  justice,  for  if  a  man 
is  before  him  he  will  give  it  right  or  wrong 
where  his  affection  is;  "  and  where  it  was 
held  that  the  indictment  lay  not.  Et  per 
Holt,  C.  J.  to  say  a  justice  is  a  fool,  or  an 
ass,  or  a  coxcomb,  or  a  bufflehead,  is  not 
indictable;  quod  fait  concess  per  Powelli 
and  vid.  2  Rol.  Reg.  78.  4  Ins.  181.  In 
the  report  of  the  case  of  The  Queen  v. 
Langley,  2  Ld.  Ray.  1029,  Gould,  J.  is 
reported  to  have  said,  that  in  Darby's 
case,  2  Mod.  139,  the  court  held  that  the 
words  were  not  indictable,  yet  the  contrary 
appears,  as  well  from  the  report,  3  Mod. 


•  139,  as  from  the  reports  of  the  same  case; 
Comb.  65,  and  Carth.  14;  in  the  latter  of 
which  it  is  stated  that  the  defendant  was 
fined  100  marks. 

In  the  case  of  The  King  v.  Penny, 
1  Ld.  Ray.  153,  (8  and  9  VV.  III.)  the  de- 
fendant was  indicted  for  saying  of  Mr. 
Martin,  a  justice  of  the  peace,  "  I  did  not 
care  if  all  the  Martins  had  been  hanged 
five  years  ago,  and  the  justice  is  now 
turned  out  of  the  commission;"  and  the 
indictment  was  quashed,  on  motion,  the 
court  observing  that  Mr.  Martin  ought 
to  have  brought  h's  action. 

In  the  case  of  The  King  v.  Retell,  Str. 
420,  where  the  defendant  was  indicted  for 
saying  to  a  justice  of  the  peace  in  the  exe- 
cution of  his  office,  you  are  a  rogue  and  a 
liar,  it  was  held  that  an  indictment  lay; 
and  the  court,  in  giving  judgment,  ob- 
served "  the  true  distinction  is,  that  where 
the  words  are  spoken  in  the  presence  of  the 
justice  there  he,  may  commit:  but  when  it 
is  behind  his  back,  the  party  can  be  only 
indicted  for  a  breach  of  the  peace."  And 
the  court  also  held,  that  where  the  party 
might  be  committed  he  might  also  be  in- 
dicted. But  in  the  subsequent  case  of  The 
King  v.  Pocock,  Str.  1157,  an  information 
was  moved  for  words  spoken  by  the  de- 
fendant in  a  conversation  about  a  warrant 
which  had  been  granted  by  Mr.  Kent,  a 
justice  of  the  peace,  in  which  the  defend- 
ant having  asked  whether  Mr  Kent  was  a 
sworn  justice,  and  having  been  answered, 
"  to  be  sure  he  is  or  else  he  would  not  act," 
replied  "  if  he  is  a  sworn  justice  he  is  a 
rogue  and  a  forsworn  rogue."  Et  per  cu- 
i iam,  there  ought  to  be  no  information;  it 
is  not  the  same  insult  and  contempt  as  if 
spoken  to  him  in  the  execution  of  his  of- 
fice which  would  made  it  a  matter  indict- 
able. 

In  R.  v.  Wellje,  2  Camp.  C.  142,  the 
defendant  was  indicted  for  saying  of  a  jus- 
tice of  the  peace,  in  his  absence,  that  he 
was  a  scoundrel  and  a  liar.  Lord  Ellen- 
borough,  C.  J.  said,  "  the  words  not  hav- 


CONTEMPTS,  ETC.  198 

an   indirect  scandal  against  the  government  to  have  *ap-     [  *199  ] 
pointed  an  ignorant  man  to  be  a  justice  of  the  peace  is 
too  remote  to  he  satisfactory.     But  the  'case   might  fall     [  *200  J 
under  a  very  different  consideration  if  a  magistrate 
to  he  charged  with   some  specific  act  of  oppression  or  corruption 
in  his  judicial  capacity.     And  it   is  clear  that  general  abuse,   in 
such  cases,  whether  the  magistrate  he  absent  or  present,  ie  a  suf- 
ficient ground  for  binding  tho  offender  to  his  good  behavior,  or  of 
indictment  if  the  defamation  be  in  writing. 

Next,  where  the  publication  reflects  upon  the  administration  of 
justice. 

Hurry  (/;)  had  summoned  Watson,  who  was  a  member  of  a  cor- 
porate body,  into  a  Court  of  Request,  to  recover  the  sum  of  eleven 
shillings;  Hurry  was  afterwards  indicted  by  Watson  for  perjury, 
alleged  to  have  been  committed  in  the  Court  of  Requests,  and  was 
acquitted-  on  the  merits.  Hurry  then  brought  an  action  against 
Watson,  for  a  malicious  prosecution,  in  which  he  recovered  £3000 
damages,  and  the  court  refused  to  set  aside  the  verdict.  A  major- 
ity of  the  corporation  afterwards  entered  a  resolution  in  their  books, 
asserting,  "  That  Mr.  Watson  had  been  actuated  by  motives  of  jnib- 
lic  justice ,"  and  voted  him  the  sum  of  £2300. 

An  information  was  applied  for,  one  ground  for  which  was,  that 
the  terms  of  the  order  constituted  a  high  contempt  of  the 
administration  of  'justice.     On  granting  the  information,    [  *201  ] 
Ashurst,  J.  observed,  "The   assertion   that  he  was  actu- 
ated by  motives  of  public  justice,  carries  with  it  an  imputation  on 

ing  been   spoken   to  the  justice,    I  think  to  utter    them,  although  ttie  prrsecutor's 

they  are   not   indictable.     The  doctrine  is  name   may   be   in   the  commission   <  f  the 

laid   down   by    Lard    Holt,    in    a   case    in  pence  for  the  county  of  Middlesex."     And 

Salkeld  (R.\.  Wrighlton,   2  Salk.   698,  the  indictment   must   aver  that  the  words 

and  in  R.  v.   Puroctc,   12  Str.   1157;)  the  were  spoken  to  the  justice  in  the  execution 

court  of  Ring's  Benoh  refused  an  informa-  of  his  office;  R.  v.  Leafe,  Amir.  226;  and 

tion  for  Baying  ft'  a  justice,  in  his  absence,  see  Com.  46.   Com.  Di£.  Ind.  I).  Carta.  1  1. 

he  was  a  forsworn  rogue.     However,  I  will  R.  v.  Darby,  Bao.    Ab.    lit.   information, 

not  direot  an  acquittal  on   this  point,  as  it  G87.     R.  t.  Langley,  Holt's  R.  654. 
is  upon  the  record  and  ma;   be  taken  ad-        Bee  also  T%e  Queen  v.  .Win,   10 

vantage  of  in  arrest  of  judgment     It  will  180.     11    Mod.    166.    12    Mod.    88,    614. 

be  for  the  jury  now  to  say,  whether  the  I-ord  Molt  held  that,  though  an  insolent 

words  were  spoken  of  the  prosecutor  as  a  witness  might  i  -  8  tnmitted  by  the  court 

justice  of  the  peace,  and  with  intent  to  de-  for  a  contempt,  he  could  not  be  indicted.  7 

fame  him  in  that  capacity,  for  if  they  were  Mod.  28. 

not,  the  indictment  is   not   supported,  and         (*)    The  Kings.  Wahon  ••staffer*.  2 

it  could  not  by  possibility  bca  misdemeanor  ™.  It.  l'J'J. 

44* 


201  CRIMINAL  DIVISION. 

the  public  justice  of  the  country  ;  for  if  these  were  his  only  motives 
then  the  verdict  must  be  wrong." 

And  Buller,  Justice,  "  Nothing  can  be  of  greater  importance  to 
the  welfare  of  the  public  than  to  put  a  stop  to  the  animadversions 
and  censures  which  are  so  frequently  made  upon  courts  of  justice  in 
this  country  ;  they  can  be  of  no  service,  and  may  be  of  the  most 
mischievous  consequences.  Cases  may  happen  in  which  the  judge 
and  jury  may  be  mistaken;  when  they  are,  the  law  has  afforded  a 
remedy,  and  the  party  injured  is  entitled  to  pursue  every  method 
which  the  law  allows  to  correct  the  mistake  ;  but  when  a  person  has 
recourse  to  a  writing  like  the  present,  by  publications  in  print,  or 
by  any  other  means,  to  calumniate  the  proceedings  of  a  court  of 
justice,  the  obvious  tendency  of  it  is  to  weaken  the  administration 
of  justice,  and  in  consequence  to  sap  the  very  foundation  of  the  con- 
stitution itself." 

An  information  had  been  filed  by  the  Attorney-General,  against 
White  and  others,  for  an  abusive  comment  on  the  conduct  of  a  judge 
and  jury,  by  whom  a  person  had  lately  been  tried  for  murder  and 
acquitted.     Upon  the  trial  of  the  defendants  for  the  libel, 
*202  ]    Grose,  J.  informed  the  jury,  that  in  *case  they  were  of 
opinion  that  the  publication  had  been  made,  not  with  a 
view" to  elucidate  the  truth,  but  to  injure  the  characters  of  individ- 
uals and  to  bring  into  contempt  the  administration  of  justice  in  the 
country,  they  ought  to  find  the  defendants  guilty  (//). 

The  same  policy  which  prohibits  seditious  comments  on  the  King's 
conduct  and  government,  extends  to  reflections  on  the  proceedings 
of  the  two  houses  of  Parliament.  These  bodies,  so  essential  a  part 
of  the  constitution,  are  at  all  events  entitled  to  reverence  and  respect 
on  account  of  the  great  and  important  public  services  which  they 
are  bound  to  discharge.  They  have  exercised,  from  very  early 
times,  the  means  of  repressing  immediate  insults  and  contempts  of 
their  authority,  which  are  essential  at  least  to  their  dignity,  if  not 
to  their  very  existence ;  nevertheless,  they  have  been  sparing  in  the 
exercise  of  their  extensive  and  apparently  undefined  powers,  and 
have,  in  many  instances,  waived  their  privileges,  and  de. 
[  *203  ]    livered  over  offenders  to  be  dealt  with  *by  the  common 

(d)  The  jury   found   them   guilty,  and  defendant  had  instructed  Stephen  Colledge 

they  were  sentenced  to  three  years'   im-  to  say  on  his  trial  at  Oxford,  that  "  Gov- 

prisonment.  ernment  might  as  well  have  hanged  him  at 

See  also  the  case  of  The  King  v.  Smith,  Tyburn,  as  brought  him   hither  to  murder 

Skinn.  124,  where  the  charge  was  that  the  him  with  a  little  more  formality." 


ON  THE  HOUSES  OF  PARLIAMKXT.  203 

law.  It  seems  to  have  been  the  policy  of  the  courts  to  encourage 
such  a  proceeding :  and  it  is  no  less  the  duty  of  juries  to  pay  a 
ready  attention  when  proof  of  such  insults- is  submitted  to  them. 

In  the  case  |  e  I  of  the  Kingv.  Hunter,  the  defendant  having  been 
convicted  of  printing  a  scandalous  libel  upon  the  Houses  of  Lords 
and  Commons,  called  ••  Robin's  Heign,  or  Seven's  the  Main."  the 
court  set  a  fine  of  £50  upon  him,  committed  him  for  two  years,  and 
until  lie  should  pay  the  fine,  ami  likewise  till  he  should  find  security 
for  his  good  behavior  for  seven  years. 

William  Owen  (  /')  was  tried  upon  an  information  exhibited 
against  him  for  publishing  a  malicious  libel,  entitled  "The  Case  of 
the  Honorable  Alexander  Murray,  Esq.  in  an  Appeal  to  the  People  • 
of  Great  Britain,"  etc.  tending  to  scandalize  and  vilify  the  whole 
body  of  the  Commons  in  Parliament  assembled;  to  represent  the 
proceedings  in  Parliament  as  cruel,  arbitrary,  and  oppressive  ;  to 
make  it  believed  that  the  Commons  in  Parliament  assembled  had 
acted,  in  their  legislative  capacity,  in  open  violation  of  the  constitu- 
tion ;  and  also  to  represent  the  said  House  of  Commons  as  a  court 
of  inquisition,  &c.  <fce. 

*Upon  the  publication  of  this  alleged  libel  by  the  dc-    j    *204  ] 
fendant,  the  Commons  addressed  the  King,  desiring  his 
majesty  to  give  orders  to  prosecute  the  publisher,  which  was  (g") 
done. 

After  the  impeachment  of  Mr.  Hastings,  a  review  of  the  articles 
of  impeachment  was  published,  by  John  Stockdale.  Upon  the  sug- 
gestion of  Mr.  Fox,  one  of  the  managers  of  the  Impeachment,  the 
House  unanimously  voted  an  address  to  the  King,  praying  his  ma- 
jesty to  direct  his  Attorney-General  (//)  to  hie  an  information  against 
Mr.  Sto.kdale,  as  the  publisher  of  a  libel  upon  the  Commons.  The 
Attorney-General,  on  opening  the  case  to  the  jury,  after  stating  the 
address  of  the  Commons,  proceeded  to  observe,  "  I  state  it  as  a 
measure  which  they  have  taken,  thinking  it,  in  their  wisdom,  as 
every  one  must  think  it,  to  be  the  fittest  to  bring  before  a  jury  of 
their  country  an  offender  against  themselves,  avoiding  thereby,  what 
sometimes  indeed  is  unavoidable,  but  which  they  wish  to  avoid  when- 
ever it  can  be  done  with  propriety,  the  acting  both  as  judges  and 

(<■)  2  Barnard.   Iv.   D.  293.    Dig.  L.  L.         (/j)    Sir    Archibald    Macdonald,    after- 
125.  Wtrda  Lord   Chief  Baron   of  the  Court   of 

(/)  Michs.  '25  G.    2K.B.   MSS.   Dig.     t'..c  Exchequer. 
L.  L.  G7. 

(-/)  He  was  tried  before  Lord  C.  J.  Lee, 
and  acquitted. 


204 


CRIMINAL  DIVISION.— LIBELS. 


accusers,  which  they  must  necessarily  have  done,  had  they  resorted 
to  their  own  powers,  which  are  great  and  extensive,  for 
[  *205  ]  the  purpose  *of  vindicating  themselves  against  insult  and 
contempt,  but  which,  in  the  present  instance,  they  have 
wisely  foreborne  to  exercise,  thinking  (i)  it  better  to  leave  the 
offender  to  be  dealt  with  by  a  fair  and  impartial  jury." 

In  the  case  of  Bui  deli,  Bart.  v.  Abbott  (&)  it  was  held,  on  a 
consideration  of  all  the  authorities,  that  a  commitment  by  the  speaker 
of  the  House  of  Commons  of  the  plaintiff,  a  member  of  the  House, 
upon  a  resolution  of  the  House  that  a  printed  paper,  the  printing 
of  which  had  been  authorized  by  the  plaintiff,  was  a  libel  on  the 
House,  and  that  an  order  by  the  House  that  he  should  be  committed 
on  the  speaker's  warrant  was  legal  (k). 


(i)  Ridg  way's  Speeches  of  the  Hon.  T. 
Erskine. 

(k)  14  East,  1.  Trespass  against  the 
speaker  of  the  House  of  Commons  for  for- 
cibly, and  with  the  assistance  of  armed 
soldiers,  breaking  into  the  messuage  of  the 
plaintiff,  (the  outer  door  beiug  shut  and 
fastened,)  and  arresting  him  there,  and 
taking  him  to  the  Tower  of  London  and 
imprisoning  him  there;  it  was  held  to  be  a 
legal  justification  and  bar  to  plead  that  a 
parliament  was  held  which  was  sitting  dur- 
ing the  period  of  the  trespass  complained 
of;  that  the  plaintiff  was  a  member  of  the 
House  of  Commons,  that  the  house  having 
resolved  "  that  a  certain  letter,"  &c.  (in 
Cobbett's  Weekly  Register,)  was  a  l'bellous 
and  scandalous  paper,  reflecting  on  the 
just  rights  and  privileges  of  the  house,  and 
that  the  plaintiff  (who  had  admitted  that 
the  said  letter,  &c.  was  printed  by  his  au- 
thority) had  been  thereby  guilty 
[  *206  ]  of  a  breach  of  the  privileges  *of 
that  house,  had  ordered  that,  for 
his  said  offence,  he  should  be  committed  to 
the  Tower,  and  that  the  speaker  should 
issue  his  warrant;  and  that  accordingly 
the  defendant  as  speaker,  in  execution  of 
the  said  order,  issued  his  warrant  to  the 
Serjeant  at  arms,  to  whom  the  execution  of 


such  warrant  belonged,  to  arrest  the  plain- 
tiff and  commit  him  to  the  custody  of  the 
lieutenant  of  the  Tower;  and  issued  an- 
other warrant  to  the  lieutenant  of  the 
Tower  to  receive  and  detain  the  plaintiff  in 
custody  during  the  pleasure  of  the  House, 
by  virtue  of  which  first  warrant  the  Ser- 
jeant at  arms  went  to  the  messuage  of  the 
plaintiff  where  he  then  was  to  execute  it, 
and  because  the.  outer  door  was  fastened, 
and  he  could  not  enter,  after  audible  notifi- 
cation of  his  purpose  and  demand  made  of 
admission,  he  by  the  assistance  of  the  said 
soldiers  broke  and  entered  the  plaintiff 's 
messuage,  and  arrested  and  conveyed  him 
to  the  Tower,  where  he  was  received  and 
detained  in  custody  under  the  other  war- 
rant by  the  lieutenant  of  the  Tower.  See 
also  Mr.  Holt's  Treatise  on  the  Law  of 
Libel,  2nd  Edition,  p.  132.  and  the  authori- 
ties there  collected. 

JVble. — Scandalous  reflections  upon  the 
grandees  of  the  realm  fall  within  the  di- 
vision of  the  subject  which  has  been  con- 
sidered in  this  chapter;  but  since  the  pro- 
ceeding by  writ  of  Scandalum  Magnatum 
is  of  a  civil  as  well  as  of  a  criminal  na- 
ture, the  extent  of  the  injury  has  been 
treated  of  in  a  previous  chapter,  vol.  I.  c.  6. 


CHAPTER   IX. 


Publications  exciting  to  an  illegal  Act. 

•Lastly,  the  mischievous  quality  of  the  commimica-    [  *207  ] 
tion  may  consist  in  its  tendency  to  excite  an  individual  to 
the  commission  of  some  illegal  act. 

This  offence  may  consist  cither  in  a  direct  solicitation,  or  in  the 
holding  out  some  indirect  but  forcible  motive  to  the  commission  of 
such  an  act. 

In  the  cases  of  high  treason  and  misdemeanors,  all  advisers  are 
considered  as  principals,  and  are  identified  with  them  as  to  all  penal 
consequences.  In  petit  treason  (a)  and  felonies,  a  procurer  by  so- 
licitation or  advice  is  punishable  as  an  accessory  before  the  fact ;  and 
by  many  statutes  creating  new  offences,  counsellors,  aiders,  and 
abettors,  are  subjected  to  specific  punishments. 

And  where  the-  solicitation  is  not  followed  by  the  actual  commis- 
sion of  the  offence  contemplated,  it  is  perfectly  clear  that 
the  adviser  is  liable  to  *be  (6)  punished  for  his  wilful  at-    [  *208  ] 
tempt  to  violate  the  law,  through  the  agency  of  ano- 
ther. 

And  secondly,  the  holding  out  any  indirect  but  forcible  motive  to 
induce  the  commission  of  an  illegal  act,  is  in  itself  indictable.  Thus 
it  is  not  only  illegal  to  send  a  challenge  to  fight,  but  even  an  attempt 
to  provoke  (c)  another  to  send  such  a  challenge  is  a  misdemeanor, 
since  the  endeavor  is  an  act  done  towards  the  accomplishment  of  the 
Offence  (//). 

With  respect  to  communications  tending  to  acts  of  personal  vio- 
lence, there  is  an  important  distinction  between  words  spoken  and 

(r>)   1  Tide's  P.  C.  616.  proachful   or   provoking  speeches   or 
(/;)  R.  v.  Phillips,  6  East,  4G4.    /?.  v.  tares,  tending  to  make  an;  quarrel  or  dis- 
Soulherlon,  G  East,  12G.     R.  v.  Higgitu,  2  tnrbance,  he    shall,  upon   bein3  convict- 
East,  5.  ed  thereof,                wh  punishment  as  a 

(c)   By    the  22    G.   II.    c.    28,  "  If  any  Court  Martial  shall  impose, 

person,  on  board   the  fleet,  shall   use   re-  ('/)  G  East,  4G1. 


208 


CRIMINAL  DIVISION. 


•written,  or  printed  publications  ;  the  former  are  not  indictable,  though 
they  be  scurrilous,  and  reflect  upon  the  character  of  an  individual, 
or  even  be  addressed  personally  to  him,  unless  they  (e) 
[  *209  ]    amount  to  a  direct  *solicitation  to  a  breach  of  the  peace, 
as  by  a  challenge  to  fight.     The  defendant  (/)  said  the 
mayor  of  Salisbury,  "  You,  Mr.  Mayor,  are  a  rogue  and  a  rascal ;" 
and  it  was  held,  after  great  deliberation,  that  the  words  were  not  in- 
dictable, since  they  were  not  spoken  to  him  in  the  execution  of  office  ; 
that  if  they  had  been  put  into  writing  they  would  have  constituted 
a  libel,  which  would  have  supported  either  an  indictment  or  an  ac- 
tion ;  but  that  they  were  but  loose  or  unmannerly  words, 
[  *210  ]    like  those  spoken  of  an  alderman  of  *Hull — "  When  he 
puts  on  his  gown,  Satan  enters  into  it,"  which  were  ad- 
judged to  be  not  indictable  ;  and  Holt,  C.  J.  said,  that  words  direct- 
ly tending  to  a  breach  of  the  peace,  may  be  indictable ;  but  other- 
wise, to  encourage  indictments  for  words,  would  make  them  as  uncer- 
tain as  actions  for  words  are. 

But  it  seems  to  be  perfectly  settled,  that  any  malicious  defamation 
of  any  person,  expressed  in  print  or  in  writing,  or  by  means  of 
pictures  or  signs,  and  tending  to  provoke  him  to  anger  and  acts  of, 
violence,  or  to  expose  him  to  public  hatred,  contempt,  or  ridicule 
(g-)  'amounts  to  a  libel  in  the  indictable  sense  of  the  word.     And 


(e)  6  Mod.  125.  Ld.  Ray.  1030.  The 
terms  liar  and  rogue  are  not  indictable 
when  spoken,  because  (as  is  said)  they  do 
not  immediately  tend  to  a  breach  of  the 
peace,  4  Ins.  181. 

Notwithstanding  this  authority,  it  would 
not  be  easy  to  select  two  other  words  in 
the  language  which  do  so  efficaciously  tend 
to  a  breach  of  the  peace,  or  which  have,  in 
fact,  been  so  frequently  the  forerunners  of 
blows,  as  the  two  alluded  to.  The  reason 
for  tolerating  such  oral  but  tempting  in- 
citements to  violence,  seems  to  be  well 
grounded  apprehension,  that,  to  subject  the 
speakers  of  abusive  words  to  punishment, 
would  be  to  cherish  a  spirit  of  petty  litiga- 
tion, the  inconvenience  of  which  would 
outweigh  the  mischief  intended  to  be  re- 
medied. The  experiment  was  made  with 
respect  to  actions  (vol.  i.  p.  22.),  but  the 
judges  were  quickly  induced  to  abandon 
the  rule  they  had  laid  down,  which  does 
not  seem  ever  to  have  been  extended  in  the 


same  latitude  to  the  criminal- offence;  and 
Lord  Holt  observed,  that  to  encourige  in- 
dictments for  words  would  render  them  as 
uncertain  as  actions  for  words  are.  Supra 
197. 

By  st.  9  Ann.  c.  14,  s.  8,  in  case  any 
person  shall  challenge  another,  or  provoke 
him  to  fight,  on  account  of  money  won  at 
play,  he  shall,  upon  conviction,  forfeit  all 
his  goods  and  chattels  and  personal  estate 
whatsoever,  and  shall  suffer  imprisonment 
for  two  years.  See  Haw.  P.  C  b.  1,  c.  72, 
s.  42. 

(/)  The  Queen  v.  Langley,  6  Mod. 
125. 

(g)  3  Black.  Com.  150.  Haw.  PI.  Cr.  c. 
73.  s.  1.  5  Co.  125.  5  Mod.  165.  Salk.  418. 
Str.  422,  791.  12  Mod.  221.  Ld.  Ray.  416. 
1  Sid.  270.  Supra,  v.  i.  c.  5. 

As  every  person  desires  to  appear  agree- 
able in  life,  and  must  be  highly  provoked 
by  such  ridiculous  representations  of  him 
a9  tend  to  lessen  him  in  the  esteem  of  the 


LIBELS  ON  INDIVIDUALS.  210 

since  the  reason  is,  that  each  publications  create  ill  blood, 
and  manifestly  tend  to  a  disturbance  of  *the  public  peace,  |  -11  ] 
the  degree  of  discredit  is  immaterial  to  the  essence  of 
the  libel,  since  the  law  cannot  determine  the  degree  of  forbearance 
which  a  party  reflected  upon  will  exert  before  he  ie  excited  ami  pro- 
voked to  acts  of  outrage,  and  therefore  prohibits  equally  all  imputa- 
tions conveyed  by  such  means,  ami  possessing  such  a  tendency. 

The  grounds  of  the  distinction  between  oral  ami  written  provoca- 
tion, are  to  be  sought  after  in  practical  wisdom  ami  experience, 
rather  than  in  principle,  inasmuch  as  the  tendency  to  produce  illegal 
violence  is  oftentimes  stronger  in  the  former  case  than  in  the  latter  : 
for  instance,  contumelious  and  insulting  language  is  more  likely  to  in- 
flame the  party  to  whom  it  is  applied,  to  acts  of  outrage,  when  it  is 
uttered  publicly  in  his  hearing,  than  if  even  the  same  expressions 
were  to  be  conveyed  to  him  by  a  private  letter, 'when  the  insult 
would  be  divested  of  its  main  aggravation, — its  publicity — and  the 
distance  of  the  offended  party  from  the  aggressor  would  allow  any 
irritation  which  was  created  an  opportunity  to  subside,  without  vent- 
ing itself  in  an  act  of  violence.  It  seems  that,  in  general,  where  a 
defamatory  libel  reflecting  on  the  character  of  an  individual  will 
support  an  action  for  damages,  the  publication  of  it 
amounts  to  the  indictable  offence,  inasmuch  as  it  *tends  to  [  *212  ] 
provoke  animosity  and  violence,  and  to  disturb  the  peace 
of  society  (//). 

An  indictment  (t)  also  lies  for  a  libel  reflecting  upon  the  memory 
of  a  person  who  is  dead,  if  it  be  published  with  the  malevolent  pur- 
pose to  injure  his  family  and  posterity,  and  to  expose  them  to  con- 
tempt and  disgrace;  for  the  chief  (A*)  cause  of  punishing  offences 
of  this  nature,  is  their  tendency  to  a  breach  of  the  peace  ;  and  al- 
though the  party  be  dead  at  the  time  of  publishing  the  libel,  yet 

world,  and  take  away  his  reputation  which        (h)  Skinn.  128.  2  Wils,  201.  Com.  Dig. 

to  some  men,  is  more  dear  than  life  itself;  tit.  Libel,  o.  S.  Bac.  Ab.  tit.  Slander,  -i*l'. 

it  has  been  held,  that  not  only  charges  of  3  Bl.  Com.   126.  2  Camp.  It.  511,  and, 

aflagrant  nature  and  which  reflect  a  moral  therefore  as  to  the  extent  of  the  offence, 

turpitude  ou  the  party,  are  libellous,  but  see  Vol.  I.  c.  5.  p.  1-1S.     In  some    instances 

also  such  as  set  him  in  a  scurrilous,  igno-  an  indictment  lies  for  words  which  would 

minious  light,  whether  expressed  in  print-  not  support  an  action.     See  Com.  Dig.  Ind. 

ing,  or  writing,  or  by  signs,  or  pictures,  D.     R.  v.  Darby,  3  Mud.  189. 
for  these  equally  create  ill  blood  and  pro-         (?)  5  Co.  [25.   Haw.   PI.   Cr.  o.  73.  S.  1. 

voke   the  parties  to  acts  of  revenge  and  The  King\.  Tophum,  1  T.  \\.  126. 
breaches  of  the  peace.     Dae.  Ab.  tit.  Libe^         (A)   Haw.  PL  Cr.  c.  73.  s.  3.  5  Co.  125. 

A.  2.  '  R.  y.  Walter,  2  Esp.  C.  51. 


212  CRIMINAL  DIVISION. 

(according  to  Lord  Coke)   it  stirs  up  others  of  the  same  family, 
blood,  or  society,  to  revenge,  and  to  break  the  peace. 

In  the  case  of  the  King-  v.  Chrichley  (7),  an  information  was  grant- 
ed against  the  defendant,  for  publishing  the  following  libel,  reflect- 
ing upon  Sir  C.  Gaunter  Nicoll,  Lady  Dartmouth's  father,  and  on 
the  government :  "  On  Saturday  evening  died  of  the 
[  *213  ]  small  pox,  Sir  C.  G.  Nicoll,  Knight  of  the  *most  honor- 
able order  of  the  bath,  and  representative  in  Parliament 
of  the  borough  of  Peterborough.  He  could  not  be  called  a  friend 
to  his  country,  for  he  changed  his  principles  for  a  red  ribband,  and 
voted  for  that  pernicious  project,  the  excise."  But,  as  was  observ- 
ed by  Lord  Kenyon,  C.  J.  in  the  case  of  the  King- v.  Topham  (m), 
"  To  say  that  the  conduct  of  a  dead  person  can  at  no  time  be  can- 
vassed ;  to  hold  that,  even  after  ages  are  past,  the  conduct  of  bad 
men  cannot  be  contrasted  with  that  of  the  good,  would  be  to  exclude 
the  most  useful  part  of  history."  The  malicious  intention  of  the 
defendant,  therefore,  to  injure  the  family  and  posterity  of  the  de- 
ceased, must  be  expressly  averred  and  clearly  proved. 

And  it  is  not  necessary  that  the  libel  should  reflect  upon  the 
character  of  any  particular  individual  («),  provided  it  immediately 
tend  to  produce  tumult  and  disorder. 

An  information  was  prayed  against  the  defendant  for  publishing 
a  paper  containing  an  account  of  a  murder  committed 
[  *214  ]  upon  a  Jewish  woman  and  her  child,  by  certain  Jews 
lately  arrived  from  Portugal,  and  living  near  Broad- 
street,  because  the  child  was  begotten  by  a  Christian  ;  and  the  affi- 
davit set  forth,  that  several  persons  mentioned  therein,  who  were  re- 
cently arrived  from  Portugal,  and  lived  in  Broad-street,  had  been 

(I)  4  T.  R.  120,  in  the  notes.  cerned  with  the  Swedish  East  India   Com- 

(m)  4  T.  R.  129.  pany;  the  English  proprietors  hope  lie  will 

(n)   3  13ac.   Abr.  494.     2  Barnard.   K.  find  some  measures   to  raise  buhea  tea  in 

B.  138. 166.     The  King  v.  Osborne,  D.  L.  Sweden,  that  the   Company    my  have  an 

L.  79.  opportunity   to  ship  off  some  of  their  bad 

An  indictment  for  a  libel  on  several  per-  bohea   tea,  instead  of  having   it   burnt   as 

sons,  to  the    jurors    unknown,   is  bad.     R.  usual."     Upon  motion  for  an  information, 

v.  Ormc   (or  J I  we,)   and  Nut.  Ld.   Hay.  Lee,  C.  J.    observed,  "  Where  a   paper  is 

480.  3  Salk.  224.;  but  a  libel  upon  one  of  published,  equally    reflecting  upon  a  nura- 

a  body  of  persons  without  naming  him,  is  ber  of    people,    it  reflects   upon    all,   and 

a  libel  upon    the   whole,  and  may  be  so  de-  readers,  according  to  their   different    opin- 

scribed.     The  defendant  published  the  fol-  ion9l  may   apply  it  so."     7?.  v.  Jenour,7 

lowing    advertisement    in     a   newspaper:  ]\iod.400.     An  information  has  been  grant- 

Whereas  an  East  India  Director  has  raised  ed  for  charging  one  of  several  trustees  with 

the  price  of  green  tea   to  an   extravagant  a  breach  of  trust-     R.  v .  Griffin,   Rep.  T. 

rate,  the  same  gentleman  being  also  con-  H.  39.     See  below  tit.  Information. 


LIBELS  ON  INDIVIDUALS.  214 

attacked  by  multitudes,  in  various  parts  of  the  city,  barbarously 
treated,  and  threatened  with  death,  in  case  they  were  found  abroad 
any  more  ;  and  it  was  objected,  that  no  information  could  be  grant- 
ed, because  it  did  not  appear,  in  particular,  who  the  persons  reflect- 
ed upon  were.  But  by  the  court.  ••Admitting  that  an  information 
for  a  libel  may  be  improper,  yet  the  publication  of  this  paper  i-  de- 
servedly punishable  in  an  information  for  a  misdemeanor,  and  that 
of  the  highest  kind  ;  such  sort  of  advertisements  neces- 
sarily tending  to  raise  tumults  and  disorder  among  the  |;  '~\~>  ] 
people,  and  inflame  them  with  an  universal  spirit  of  bar- 
barity, against  a  whole  body  of  men,  as  if  guilty  of  crimes  scarcely 
practicable,  and  wholly  incredible  (o)." 

(o)  R.  v.    Osborne,  2  Kel.  230.  pi.  183.     2  Barnard.  K,  B.  138,  1C6,  and  see  below 
tit.  Information. 


Vol.  II.  45 


CHAPTER  X. 


Publications  against  sound  Policy  and  Convenience. 

Next,  every  publication  is  intrinsically  illegal  which  tends  to 
produce  any  pu  blic  inconvenience  or  calamity.  Under 
[  *216  ]  this  division,  those  rank  highly,  in  respect  of  the  magni- 
tude of  their  results,  which  tend  to  disturb  the  amicable 
relations  which  subsist  between  this  and  other  nations,  by  malicious 
reflections  upon  those  who  are  possessed  of  high  rank  and  influence 
in  foreign  states.  As  the  natural  tendency  of  these  is  to  involve 
the  government  in  a  foreign  war,  their  authors  have,  in  several  in- 
stances, been  punished  as  offenders  at  common  law.  Thus,  in  the 
case  (a)  of  the  King  v.  D'Eon,  an  information  was  filed  against 
the  defendant  by  the  Attorney-General  (&),  for  publishing  a  libel 
upon  the  Count  de  Guerchy,  who  was  at  that  time  residing  in  this 
kingdom,  in  the  capacity  of  ambassador  from  the  court 
[  *217  "  *of  France.  The  information  charged  the  defendant 
with  an  intention  to  defame  the  character  and  abilities  of 
the  Count  de  Guerchy  ;  to  render  him  ridiculous  and  contemptible  ; 
to  arraign  his  conduct  and  behavior  in  his  character  of  ambassador; 
and  to  cause  it  to  be  believed  that  he  had,  after  his  arrival  in  this 
kingdom,  been  guilty  of  unjust,  unwarrantable,  and  oppressive  pro- 
ceedings towards  the  defendant  and  his  friends ;  and  to  insinuate, 
that  he  was  not  fit  or  qualified  to  execute  the  office  and  functions  of 
ambassador.  The  defendant  was  convicted. — Lord  George  Gordon 
(c)  was  found  guilty  upon  an  information,  for  having  published  some 
severe  reflections  upon  the  Queen  of  France,  in  which  she  was  re- 
presented as  the  leader  of  a  faction ;  and  Mr.  Justice  Ashurst,  in 
passing  sentence,  observed,  that  unless  the  authors  of  such  publica- 

(«)  Easter  T.  4  G.  3.   1764.  K.  B.  MSS.  prisoned  in  Newgate  for  the  space  of  two 

Dig.  L.  L.  88.  years,  and  afterwards  to  give  security  for 

(b)  Sir  Fletcher  Norton.  his  good  behavior  for   the   space  of  four- 

(c)  Hil.  28  G.    3.     The  defendant  was  teen  years, 
sentenced  to  pay  a  fine  of  £500,  to  be  im- 


PUBLICATIONS  AGAIN  ST  SOUND  POLICY.        217 

tions  were  punished,  their  libels  would  be  supposed  to  have  been 
made  with  the  connivance  of  the  state.     The  defendant,  John  Vint 
(</),  wn>  found  guilty  upon  an  information  charging  him  with  having 
published  the  following  libel,  "  The  Emperor  of  Russia  is  rendering 
himself  obnoxious  *to   his  subjects,  by    various  acts  of 
tyranny;  and  ridiculous  in  the  eyes  of  Europe,  by  his     [  *218  ] 
inconsistency  ;  he  has  lately  passed  an  edict  to  prohibit 
the  exportation  of  deals  and  other  naval  stores.     In  consequence  of 
this  ill-judged  law,  a  hundred  sail  of  vessels  arc  likely  to    return  to 
this   country   without   their  freight  :    with  intent    to   traduce  the 
Emperor  of  Russia,  and  interruptand  disturb  the  friendship  sub 
ing  between  that  country  and  Great  Britain. 

Jean  Peltier  was  found  guilty  upon  an  information,  charging  him 
with  having  published  a  malicious  libel,  with  intent  to  vilify  Napo- 
leon Bonaparte,  ihe  Chief  Consul  of  the  French-Republic,  and  to 
excite  and  provoke  the  citizen-  of  the  said  republic  to  deprive  the 
■aid  Napoleon  Bonaparte  of  his  consular  dignity,  and  to  kill  and 
destroy  him,  and  to  interrupt  the  friendship  and  peace  subsisting  be- 
tween our  Lord  the  King  and  his  subjects  and  the  said  Napoleon 
Bonaparte  and  the  French  republic.  The  most  obnoxious  passages 
of  the  libel  were  these:  "  0!  eternal  disgrace  of  France; — Ca-sar, 
on  the  Banks  of  the  Rubicon,  has  against  him  in  this  quarrel,  the 
Senate,  Pompey,  and  Cato  ;  and  in  the  plains  of  Pharsalia,  if  for- 
tune is  unequal,  if  you  must  yield  to  the  destinies,  Koine  in  tin  .  sad 
reverse  at  least  remains  to  avenge  you  a  poignard  among  the  last 
Roman."  "As  for  me,  far  from  envying  'his  (Bona- 
parte's) lot,  let  him  name  (I  consent  to  it)  his  wor-  [  »219  ] 
thy  successor  ;  carried  on  his  shield,  let  him  lie  elect- 
ed Emperor.  Finally  (and  Romulus  recals  the  thing  to  mind),  1 
wish  that  on  the  morrow  lie  may  have  his  apotheosis.  Amen  !  " — 
Upon  the  trial,  Lord  Ellenborough,  C.  J.  referred  to  the  cases  of 
Lord  George  Gordon  and  Vint,  ami  Baid,  "  1  lay  it  down  as  law, 
that  any  publication  which  tends  to  disgrace,  revile,  and  defame  per- 
sons of  considerable  situations  of  power  and  dignity  in  foreign  coun- 
tries, may  be  taken  to  be  ami  treated  as  a  libel  :  and  particularly 
where  it  has  a  tendency  to  interupt  the  amity  and  peace  between 
the  two  countries." 

By   the  statute  35    II.  VI II.  c.  14  (e),  it  is  made   felony   to   de- 
clare any  false  prophecy  upon  occasion  of  arms,  fields,  or  letters. 

(d)  40  G.  III.  (e)  S«e  also  3  and  4  Ed.  VI.  aud  7  Ed.  VI. 


219  CRIMINAL  DIVISION. 

By  st.  5  Eliz.  c.  15,  "  If  any  person  advisedly  and  directly  ad- 
vance, publish,  or  set  forth  by  writing,  printing,  signing,  or  any 
other  open  speech  or  deed,  tc  any  person  or  persons,  any  fond,  fan- 
tastical, or  false  prophecy,  upon  or  by  the  occasion  of  any  arms, 
fields,  beasts,  badges,  or  such  other  like  things  accustomed  in  arms, 
cognizances,  or  signets,  or  upon  or  by  reason  of  any  time,  year,  or 

day,  name,  bloodshed,  or  war,  to  the  intent  thereby  to 
[  *220  ]     make  any  rebellion,  insurrection,  *dissension,  loss  of  life, 

or  other  disturbance,  within  the  realm,  &c.  upon  the 
first  conviction  he  shall  suffer  one  year's  imprisonment,  and  pay  a 
fine  of  £10,  and,  for  a  second  offence,  shall  suffer  imprisonment 
during  life,  and  forfeit  all  goods  and  chattels,  real  and  personal. 
But  it  is  provided,  that  no  one  shall  be  impeached  for  any  offence 
against  the  act,  unless  within  six  months  after  the  offence  commit- 

ed(/). 

It  has  been  from  early  times  considered  as  an  offence  at  Common 
Law,  to  attempt  by  means  of  false  rumors,  to  raise  the  price  of 
provisions,  or  other  necessaries  of  life. 

In  43  Ass.  (g-)  it  was  presented  that  a  Lombard  did  procure  to 
promote  and*  enhance  the  price  of  merchandize  ;  and  the  Lombard 
demanded  judgment  of  the  presentment  for  two  causes — 1.  That  it 
did  not  sound  in  forestalling  ;— 2.  That  of  his  endeavor,  or  attempt 
by  words,  no  evil  was  put  in  urc,  that  is,  no  price  was  enhanced  ; 

but  both  objections  were  overruled ;  "  Whereby,"  says 
[  *221  ]     Sir  E.  Coke  (/*),  it  appears  that  the  attempt  by  *words 

to  enhance  the  price  of  merchandize,  was  punishable  by 
law,  and  did  sound  in  forestalment. 

And  from  (i)  the  same  report  it  appears,  that  to  attempt  by  such 
rumors  to  diminish  the  price  of  any  staple  commodity,  to  the  pre- 
judice of*  the  dealers  in  general,  is  likewise  an  offence  at  common 
law;  for  it  is  there  said,  "  Knivet  reported  that  certain  people 
came  to  Coteswold,  in  Herefordshire,  and  said,  in  deceit  of  the  peo- 
ple, that  there  were  such  wars  beyond  seas,  as  no  wool  could  pass 
or  be  carried  beyond  seas, whereby  the  price  of  wool  was  abated; 
and  upon  presentment  thereof  made,  they  appeared,  and  upon  their 
confession,  they  were  put  to  fine  and  ransom." 

(/)  By  23  Eliz.  c.  2,  it  was  made  fel-  cies  to  any  such  intent,  or  to  wish  or  de- 

ony  to  ca.<t   the  nativity  of  the  Queen,  or  sire  the  death  or  deprivation  of  the  Queen, 
to  seek  to  know  and  set  forth  how  long  the         (g)  P.  38. 
Queen  shall  live,  or  who   shall  reign  after         (A)  3  Ins.  196. 
her  decease,  or  to  utter  any  false  prophe-        (*)  43  Ass.  p.  38. 


PUBLICATIONS  A.GAINST  SOUND  POLICY.         221 

And  in  (/c)  Mich,  term,  39  and  40  Eli/.,  it  was,  after  conference 
and  mature  deliberation,  resolved  by  all  the  justices,  that  every 
practice  or  device,  by  act,  conspiracy,  words,  or  news,  to  enhance 
the  price  of  provisions,  or  other  merchandize,  was  punishable  by  law. 

An  information  (F)  was  filed,  charging  the  defendant,  that  he, 
intending  to  enhance  the  price  of  hops,  did,  at  Worcester,  in  the 
hearing  of  divers  hop  dealers  and  planters,  declare,  that  t^e  then 
present  stock  of  hops  was  nearly  exhausted,  and  would 
be  exhausted  before  the  crop  of  hops  "then  growing  could  *222  ] 
be  brought  into  the  market :  and  that  there  would  soon 
be  a  scarcity  of  hops,  with  intent  and  design,  by  such  rumors  and 
reports,  to  induce  dealers  in  hops  not  to  carry  any  to  market  for 
sale.  When  the  defendant  (m)  was  brought  up  to  receive  judg- 
ment, his  counsel  objected  that  the  counts  charging  him  with  having 
spread  rumors  to  enhance  the  price  of  hops,  did  not  aver  (n)  that 
the  rumors  were  false  ;  and  that  it  should  at  least  have  been  stated 
that  the  price  of  the  commodity  had,  in  fact,  been  raised  by  the 
rumors.  But  there  were  other  counts  in  the  information,  charging 
the  defendant  with  engrossing  large  quantities  of  hops,  with  intent 
to  prevent  the  same  from  being  brought  to  market,  and  to  re-sell 
the  same  at  an  exorbitant  profit,  and  thereby  greatly  to  enhance 
the  price  of  hops;  and  the  defendant  was  adjudged  to  pay  a  fine 
of   £500  and  to  be  imprisoned  for  one  month. 

The  court  does  not,  in  the  above  case,  appear  to  have  given  an 
express  opinion  upon  the  indictable  quality  of  the  offence  described 
in  the  first  two  counts,  which  consisted  in  the  spreading 
•rumors  generally,  with  intent  to  enhance  the  price;  nor    |      223  ] 
was  this  necessary,  since  the  information  contained  inde- 
pendent charges  which  were  deemed  sufficient,  and  upon  which  the 
judgment  appears  principally  to  have  been   founded.     It  was  con- 
tended by   the    counsel   for    the   prosecution,  that  "  the  spreading 
rumors,  whether  true  or  false,  if  dune  with  a  mischievous  intent,  to 
produce  a  public  detriment,  is  indictable  upon  general  principles  of 
law,  in  the  same  manner  as  publishing  a  libel,  however  true  the  fi 
stated  may  be  ;  and  that,  in  Jollife's  case  (o),  the  endeavoring  to 

(fr)  3  Ins.  106.  Bro.  Itul.  pi.  40.  petted  that  judgment  ought  to  be  arrested 

(/)  R.  v.  Waddington,  1  Kast.  143.  or    a   new    trial    grunted,    the  defendant 

(w)   He  was  convicted  before   Mr.  J .  Le  should  not  be   precluded   from    the  advan- 

Dlanc,   at   Worcester,  and   when    brought  tagc. 

up  to   receive   sentence,  the   court   out  of        (;i)  See  Haw.  P.  C.  c.  80,  s.  1. 
mere   indulgence,   allowed   his    counsel  to         (o)  4  T.  K.  285. 
go  fully  into  the  case,  saying,  that  if  it  ap_ 

45' 


223  CRIMINAL  DIVISION. 

procure  certain  persons  to  be  appointed  overseers,  was  held  to  be 
criminal,  though  the  criminality  consisted  in  the  intent  only,  which 
was  to  derive  a  private  advantage."  It  seems,  however,  to  be  clear, 
that  no  malice  will  render  an  act  indictable,  which  is  in  itself  inno- 
cent and  legal  ;  .the  question  therefore  is,  whether  the  publication 
of  real  facts  (the  knowledge  of  which  may  affect  the  price  of  pro. 
visions  or  of  merchandize)  can  be  considered  as  detrimental  to  the 
community ;  if  it  can,  then  a  mischievous  intention  (that  is  malice) 
in  the  absence  of  rebutting  evidence,  is  to  be  presumed  ;  if  it  can- 
not, no  malice,  as  it  seems,  can  render  it  criminal.  In  many  cases, 
the  publication  of  such  facts  would  rather  affect  the  inter- 

*224  ]  ests  of  individuals,  than  *those  of  the  community.  If, 
for  instance,  a  person  were  truly  to  publish,  that  the  for- 
eign markets  were  so  glutted  with  a  particular  commodity,  that 
British  wares,  of  the  same  description,  could  not  be  sold  there,  the 
report  might  operate  to  the  immediate  prejudice  of  the  holders  of 
that  article  ;  but  the  prejudice  to  the  public,  namely,  their  exclusion 
from  the  foreign  market,  would  be  attributable  purely  to  the  super- 
fluity which  prevailed  there,  and  not  to  the  communication  made  by 
the  defendant. 

It  is  said  to  have  been  resolved  by  all  the  judges,  that  all  writers 
of  false  news  (/?)  are  indictable  and  punishable  ;  and,  probably,  at 
this  day  the  fabrication  of  news  likely  to  produce  any  public  detri- 
ment would  be  regarded  as  criminal  and  punishable. 

In  the  case  of  the  King  v.  De  Berenger  and  others  (#),  it  was 
held  to  be  an  indictable  offence  to  conspire  to  raise  the  price  of 
the  public  funds  by  means  of  false  rumors,  the  end  as  well  as  the 
means  being  illegal. 

(p)  4  Read.  St.  L.  L.  23.  with  intent  to  injure  and   aggrieve  all  the 

(q)  3  M.  &  S.  67,  the  false  rumor  was  subjects  of  the  king  who  should,  on   the 

that  N.  Bonaparte  the  then  ruler  of  France,  21st  day  of  February,  1814,   (the  day  of 

with  whom  Great  Britain  was  at  war,  was  spreading  the  rumor)  purchase  any  share 

dead  ;  and  it  was   laid  to  have  been  done  in  the  public  government  funds. 


CHATTER  XI 


Op  the  Act  of  Publication. 

•The  plaintiff,  to  entitle  himself  to  damages  in  a  civil  |  *225  ] 
action,  must,  as  has  been  seen,  shew  a  publication  made 
by  the  defendant,  with  a  wrongful  intention  ;  and  whatever  has  been 
said  upon  that  subject  applies  equally  to  the  criminal  proceeding, 
with  this  addition,  that  the  sending  of  a  libel  to  the  individual  re- 
flected on,  without  exposing  the  contents  to  a  third  person,  is  a  suf- 
ficient publication  to  support  an  indictment,  on  account  of  its  ten- 
dency (a),  to  provoke  that  individual  to  commit  a  breach  of  the 
peace. 

According  to  the  general  rule  of  law,  it  is  clear  that  all  who  are 
in  any  degree  accessory  to  the  publication  of  a  libel,  and  by  any 
means  whatever  conduce  to  the  publication,  are  to  be  considered  as 
principals  in  the  act  of  publication  :  thus  if  one  suggest  illegal  mat- 
ter, in  order  that  another  may  write  or  print  it,  and  that  a  third 
may  publish  it,  all  are  equally  amenable  for  the  act  of 
publication,  when  it  has  been  so  effected.  *But  what,  if  [  *22G  ] 
no  publication  has  taken  place,  is  the  mere  making  of  a 
libel,  or  the  possession  of  it  when  made  by  another,  a  crime  by  the 
law  of  England. 

Ld.  Coke,  in  the  fifth  report  De  Libellis  Famosis,  resolution  4, 
after  describing  the  different  species  of  libels,  immediately  proceeds 
to  point  out  the  different  modes  of  publication  ;  and  then  observes, 
"  It  was  resolved  in  the  Star  Chamber,  in  HaUitDOodPs  case,  that  if 
one  find  a  libel  (and  would  keep  himself  out  of  danger),  if  it  be 
composed  against  a  private  man,  the  finder  either  may  burn  it,  or 
presently  deliver  it  to  a  magistrate  ;  I  ait  if  it  concern  a  magistrate 
or  other  public  person,  the  finder  ought  presently  to  delivei-it  to  a 
magistrate."  It  does  not  very  clearly  appear,  whether  this  proce- 
dure was   prescribed  as  a  strictly  legal  or  merely  as  a  moral  duty 

(a)  1  Will.    Saun.  132,  n.  2.     2  Esp.  R.  226.     5   Mod.   163.     12  Co.   35.     1    Hob. 
62.  215. 


226  CRIMINAL  DIVISION. 

ancTmatter  of  prudence,  since  the  phrase,  "  if  he  would  keep  him. 
self  out  of  danger,"  is  abundantly  ambiguous.  This  doubt,  however, 
is  in  some  degree  removed  by  reference  to  the  civil  law,  whence  the 
doctrine  is  said  to  have  been  derived  ;  according  to  which  it  seems, 
that  the  finder  of  a  libellus  famosus  was  not  punishable  for  the 
mere  keeping  of  it  in  possession,  but  for  the  improper  publication 
of  it. 

Si  quis  famosum  libellum  sive  domi  sive  in  publico  vel  in  quocun- 

que  loco  ignarus  offenderit,  aut  discerpat  priusquam  alter 
[  *227  "|    inveniat,  aut  nulli  confiteatur  *inventum  ;  nam  quicunque 

obtulerit  inventum,  certum  est  ipsum  reum  ex  lege  retin- 
endum,  nisi  prodideret  auctorem :  nee  evasurum  paenas  hujusmodi 
criminibus  constitutas,  si  proditus  fuerit  cuiquam  retulisse  quod  leg- 
erit  (b). 

By  the  edicts  of  the  Emperors  Valentinian  and  Valens : 
"  Si  quis  famosum  libellum  ignarus  repererit  fc),  aut  corrumpat 
priusquam  alter  inveniat,  aut  nulli  confiteatur  inventum.  Si  vero 
non  statim  easden  chartulas  corruperit  vel  igne  consumpserit,  sed 
earum  vim  manifestaverit,  sciat  se  quod  auctorem  hujusmodi  delicti 
capitali  sententiae  subjugandum."  Again  in  the  Codex  Justinianus 
de  famosis  libellis,  "  Famosis  libellis  si  quis  scripserit  quod  pertineat 
ad  injuriam  alterius  (d),  de  qua  est  publica  accusatio  et  poena  cap- 
itals, non  tantum  in  auctorem  famosi  libelli,  sed  etiam  in  eum  qui 
invenitnec  combussit  sed  evulg-avit ;  quia  iste  auctor  prgesuinitur  esse 
libelli,  qui  eum  sparsit  in  vulgus  non  prodito  auctore." 

Hence  it  may  be  collected,  that  the  finder  of  a  libel  was  not  pun- 
ishable for  the  mere  keeping  of  it  in  custody,  but  for  its  subsequent 

publication  ;  and  therefore  it  seems  that  the  passage  in 
[  *228  ]    the  resolution  *cited,  was  intended  rather  as  a  caution 

against  the  effects  of  a  publication,  which  a  party  risked 
by  keeping  the  libel  in  possession,  than  a  declaration  that  the  keep, 
ino-  of  it  in  possession  was  in  itself  a  temporal  crime. 

With  respect  to  the  Star  Chamber  practice,  that  court  does  not 
appear  to  have  ever  punished  for  the  mere  possession  of  a  libel ; 
on  the  contrary,  as  will  afterwards  be  noticed,  their  jurisdiction  was 
considered  to  be  doubtful,  even  where  there  had  been  a  publication 
by  sending  a  libel  to  the'party  defamed, — a  doubt  which  never  could 
have  been  entertained,  had  the  power  of  that  court  to  punish  for 
mere  possession,  been  considered  as  clearly  established.     But  this 

(b)  Theod.  Cod.  Lib.  9,  tit.  34.  (rf)  lb.  tit.  36. 

(c)  Cod.  Lib.  9,  tit.  36. 


PUBLICATION.  U:> 

offence,  if  it  ever  existed  as  such  against  the  law  of  the  country, 
probably  did  not  survive  the  court  which  created  it. 

An  information  (c)  was  exhibited  against  the  defendant,  fur  caus- 
ing to  be  framed,  printed,  and  published,  a  scandalous  libel.  Upon 
evidence  it  appeared,  that  two  printed  libels  had  been  found  at  the 
lodgings  of  the  defendant,  upon  wan  ants  from  the  principal  Secretary 
of  State  to  search  there.  The  opinion  of  the  court  was,  that  this 
was  no  ciiine  within  the  information,  though  he  g 
•no  account  how  they  came  there ;  and  that  the  having  |"  *229  ] 
a  libel  in  possession  without  delivering  it  to  a  magistrate, 
was  punishable  in  the  Star  Chamber  only.  In  the  subsequent  case 
of  the  King  v.  Beare,  Lord  Holt  C.  J.  is  reported  to  have  said, 
that  the  collecting  and  transcribing  of  libels  (/),  for  the  purpose  of 
publishing  them,  is  criminal,  though  no  publication  should  ever  take 
place  ;  since  men  ought  not  to  be  allowed  to  have  such  evil  instru- 
ments in  their  keeping.  But  in  another  report  of  the  same  case, 
the  defendant  having  been  found  guilty  of  writing  and  collecting 
certain  libels,  it  was  said,  that  the  collecting  had  been  better  out  of 
the  case  (#•)  ;  and  it  is  clear  that  judgment  was  given  on  the  ground 
that  the  defendant  wrote  the  original  libel,  since  though  Lord  Holt 
intimated  that  the  bare  copying  of  a  libel  was  criminal,  he  said  there 
was  no  necessity  for  the  opiuion,  because  the  defendant  had  been 
found  guilty  of  writing  the  original  (A). 

Upon  the  different  reports  of  this  case,  Lord  Camden  remarked  ; 
"  If  all  this  be  law,  and  I  have  no  right  at  present  to  deny  it,  when- 
ever a  favorite  libel  is  published,  the  whole  kingdom  in  a 
month  or  two  becomes  criminal,  and  it  would  *be  ditii-    [  *230  ] 
cult  to  find  one  innocent  jury  amongst  so  many  millions 
of  offenders  (*)." 

With  respect  to  the  bare  fact  of  committing  libellous  matter  to 
print  or  writing,  the  nature  of  the  act  appears  to  lie  much  more 
doubtful ;  since,  though  it  has  been  expressly  decided  that  the  bare 
act  of  writing,  without  publication,  is  criminal  at  common  law,  the 
grounds  of  that  determination  afford  room  for  doubt. 

Under  the  jurisdiction  of  the  Court  of  Star  Chamber,  some  pub- 

(c)  Vent     31.     E.   21.    C.    2.     15  Yin.  King  v.  Rosenstei n,  2  C.  &  P.  Ni.  Pri.  Ca. 

Ab.89.pl.  6.     Dig.  L.  L.  10.  414.     Park,  J.  thought  it   highly  doubtful 

(/)  Carth.  409.     Holt  E.  422.  whether  the  having  in  possession  an  ob- 

((/)  S.ilk.  417.     Ld.  Ray.  414.  9cene  libel  with  intent  to  publish  it  was  an 

(/i)  2  Salk.  419.  indictable  offence. 
(i)  11   St.   Tr.  322.      The  case  of  the 


230  CRIMINAL  DIVISION. 

lication  appears  to  have  been  held  essential  to  the  completion  of  the 
offence ;  since  even  in  cases  where  libels  had  been  sent  to  the  indi- 
viduals libelled,  it  was  doubted  whether  the  Court  had  jurisdiction — 
a  question  which  never  could  have  been  raised,  had  the  mere  act  of 
writing  been  sufficient  to  complete  the  offence. 

Thus,  in  the  case  (&)  of  Dr.  Edwards  and  Dr.  Wooton,  the 
letter  had  been  written  to  Dr.  Edwards  himself,  and  it  was  said, 
that  the  latter  should  be  punished,  (  although  it  was 
[  *231  ]  solely  writ  to  the  plaintiff  without  any  other  *publication,) 
in  the  Star  Chamber,  for  that  it  was  an  offence  to  the 
King,  and  a  great  motive  to  revenge.  And  the  same  question  oc- 
curred in  the  case  of  Barrow  v.  Llewellin  (7),  where  the  letter  had 
been  sent  sealed  to  the  party,  as  also  in  the  case  of  Sir  Baptist 
Hicks  (rti)  and  no  instance  appears,  in  which  the  Star  Chamber 
punished  for  a  libel  without  some  publication. 

In  the  case  of  Lewis  Pickering  (w),  in  the  Star  Chamber,  the 
defendant  confessed  the  publishing  as  well  as  the  composing  of  the 
libel ;  and  in  the  resolutions  which  are  subjoined  to  the  case,  no 
hint  is  given  that  the  mere  making  of  a  libel  without- a  publication 
would  be  punishable  in  that  court :  on  the  contrary,  the  reasons  for 
punishing  the  offence  of  libelling  are  expounded,  and  are  such  as 
can  apply  to  those  cases  only  in  which  a  libel  has  been  actually 
published  :  and  in  the  4th  resolution,  after  the  explanation  given 
of  the  different  kinds  of  libels,  the  various  modes  of  publication  are 
immediately  specified. 

In  Lamb's  case  (o)  the  bill  was  exhibited  against  the  defendants 
for  the  publication  of  two  libels  ;  and  it  was  resolved, 
[  *232  ]  "  that  every  one  who  "shall  be  convicted  in  the  said 
case,  either  ought  to  be  a  contriver  of  the  libel,  or  a 
procurer  of  the  contriving  of  it,  or  a  malicious  publisher  of  it,  know- 
ing it  to  be  a  libel ;"  the  resolution  then  goes  on  to  expound,  what 
shall  amount  to  a  publication,  and  afterwards  repeats,  that  every 
one  who  shall  be  convicted,  ought  to  be  the  contriver,  procurer,  or 
publisher  of  it,  knowing  it  to  be  a  libel.  Upon  the  face  of  this  re- 
solution it  appears  to  be  doubtful,  whether  the  contriver  and  procu- 
rer were  considered  as  severally  punishable  for  their  acts,  though 
no  publication  should  take  place  ;  or  whether  the  resolution  does 
not  suppose,  in  the  first  place,  that  the   offence  has  been  completed 

{k)  12  Co.  35.  5  J.  1.  (n)  5  Co.  125.     3  J.  1. 

(Z)  1  Hob.  62.     13  J.  1.  (o)  9  Rep.  59.     8  J.  1. 

(m)  Hob.  215. 


PUBLICATION.  232 

by  a  publication,  and  then  proceeds  to  define  what  degree  of  agency 
shall  render  any  party  concerned  responsible  for  the  whole  effect 
produced.  In  favor  of  the  former  construction  it  appears,  that  the 
actors  arc  separately  and  disjunctively  enumerated  a<  liable  to  be 
convicted:  and  this  interpretation  was  adopted  by  Lord  Holt.  In 
support  of  the  latter  construction,  it  may  be  observed,  that  the 
words,  "  every  one  who  shall  be  convicted  in  tin.'  said  case,"  refer 
immediately  to  the  case  of  the  defendants,  who  were  prosecuted  for 
publishing  two  libels ;  that  in  the  subsequent  part  of  the  resolution 
it  is  said,  "  If  the  defendant  write  a  copy  of  a  libel,  and  do  not 
publish  it  to  others,  it  is  no  publication  ;"  which  affords 
some  "reason  for  inferring,  that  a  publication  was  deem-  |  '-'■'•  •"•  ] 
cd  to  be  in  all  cases  necessary  before  any  conviction  could 
take  place  ;  since  the  passage,  if  understood  in  this  sense,  that  a 
person  who  commits  a  libel  to  writing  is  not  punishable,  unless  he 
afterwards  publish  it,  is  sensible  and  intelligible  ;  but  if,  on  the  oth- 
er hand,  the  construction  be  this,  that  a  person  who  writes  a  libel, 
but  does  not  publish  it,  is  not  punishable  as  the  publisher,  but  is 
nevertheless  liable  as  the  contriver,  as  was  contended  for  in  the 
case  King- v.  Beare, — then  the  passage  is  apiece  of  idle  tautology, 
and  amounts  to  no  more  than  this,  that  a  person,  who  docs  not  pub- 
lish a  libel  which  he  has  written,  is  not  guilty  of  a  publication. 
The  resolution  afterwards  proceeds  to  say,  "  but  it  is  great  evidence 
that  he  published  it,  when  he,  knowing  it  to  be  a  libel,  writeth  a 
copy  of  it."  Upon  which  it  may  be  observed,  that  the  resorting  to 
presumptive  evidence,  by  making  the  act  of  writing  proof  of  publica- 
tion, would  be  nugatory,  if  that  act  of  itself  constituted  a  distinct 
and  substantive  offence. 

Samuel  Paine,  a  minister,  was  tried  upon  an  information  (p), 
setting  forth,  that  he  was  the  author,  composer  and  publisher  of  a 
malicious  libel  against  the  late  Queen  Mary,  styled  "  Her 
Epitaph."  *The  jury  found,  by  way  of  special  verdict,  *234  ] 
that  a  certain  person,  to  them  unknown,  did  pronounce, 
dictate,  and  repeat  the  words  contained  in  the  libel  which  the  de- 
fendant did  write  ;  and  if  that  will  make  him  guilty  of  the  composing 
and  making  of  the  libel,  then  they  find  him  guilty,  and  as  to  the 
publication,  they  find  him  not  guilty.  After  argument  the  Court  ob- 
served, "  the  making  of  a  libel  IS  an  offence,  though  never  publish- 
ed ;  and  if  one  dictate  and  another  write,  both  are  guilty  of  iuak- 

(jo)  5  Mod.  1G3.     1  Salk.281.     Comb.  357.     Carth.  405.     1  Ld.  Ray.  T20.  Holt,  294. 


234  CRIMINAL  DIVISION. 

ing  it ;  to  what  purpose  should  any  one  write  or  copy  after  another, 
but  to  shew  his  approbation  of  the  contents  of  a  libel  and  the  better 
to  enable  him  to  keep  it  in  his  memory,  and  repeat  the  contents  of  it 
to  others."  The  matter  was,  however,  adjourned,  and  it  does  not 
appear  that  any  judgment  was  given. 

The  defendant  Beare  (#)  was  found  guilty  of  writing  and  collect- 
ing, but  acquitted  of  the  making  and  composing  of  several  libels 
stated  in  the  indictment.  Upon  motion  in  arrest  of  judgment,  Holt, 
C.  J.  said,  "  Before  I  come  to  the  objections  against  the  verdict,  I 
shall  consider  whether  it  be  not  criminal  to  write  a  libel, 
[**235  ]  although  a  man  be  not  the  composer  or  contriver  there- 
of." The  learned  judge  observed,  that  it  is  the  putting 
of  the  words  into  writing,  which  is  the  essence  of  the  offence  ;  for 
the  party  is  not  guilty  unless  he  put  the  words  into  writing  ;  and 
that  in  all  cases  where  a  man  does  an  act,  which  act  causes  the  thing 
to  be  what  it  is,  such  an  one  is  to  be  considered  the  doer  of  it ;  that 
in  all  lower  offences  procurers  are  principals,  so  that  if  A.  hold  B. 
whilst  C.  beats  him,  A.  is  guilty  of  the  battery  ;  that  Lamb's  case 
was  to  be  expounded  by  the  same  case  in  Moor  (V)?"1  which  it  was 
reported  to  have  been  resolved,  that  the  writer  of  a  libel  is,  in  law, 
the.contriver  ;  but  that  in  Lamb's  case  the  question  was  not  concern- 
ing the  writing  or  making,  but  about  the  publication  thereof,  and  it 
was  held,  that  the  writing  of  a  copy  of  a  libel,  as  indeed  the  writing 
of  the  original  libel  itself,  is  no  publication  thereof,  but  only  an  evi- 
dence of  publication  ;  that  the  question  was  not  how  far  the  writing 
of  a  libel  was  criminal,  but  whether  the  writing  of  a  copy  be  a  pub- 
lication, which  indeed  it  is  not ;  that  the  case  of  John  De  North- 
ampton is  apposite,  who  was  charged  with  writing  only,  without  any 
mention  made  of  publication,  and  who  confessed  the  writing  only. 
The  learned  judge  also  expressed  his  opinion,  that  the 
[  *236  ]  copying  of  a  libel  was  a  libel,  *because  it  comprehends 
all  that  is  necessary  to  make  it  a  libel,  the  same  scandal- 
ous matter,  and  the  same  mischievous  consequences  ;  since  it  is  by 
this  means  perpetuated,  and  may  come  to  the  hands  of  other  men, 
and  be  published  after  the  death  of  the  copier  ;  and  that  if  men 
might  take  copies  of  them  with]  impunity,  then  the  printing  of  them 
would  be  no  offence,  and  then  farewell  to  government. 

Turton  and  Rokeby,  Justices,  were  of  the  same  opinion,  and  refer 

(q)  Ld.  Ray.  417.     Cart.  409.   12  Mod.         (r)  813. 
219.     2  Salk.  417. 


PUBLICATION.  236 

red  to  several  cases  (.*),  to  prove  that  writing  a  libel  without  pub- 
lishing it,  was  punishable  in  the  Star  Chamber. 

The  parallel  drawn  by  Lonl  Bolt,  in  the  above  case,  seems  to  be 
objectionable,  since  it  assumes  the  offence  to  bave  been  completed. 
If  A.  hold  B.  whilst  C.  beats  him,  A.  is  guilty  of  the  beating,  but 
the  offence,  that  is,  the  battery,  here  is  completed;  to  suppose  then, 
that  the  case  in  question  is  analogous  to  it,  is  to  assume  that  the  of- 
fence of  libelling  is  complete  without  a  publication;  the  question 
was  not  whether  an  aider  or  abettor  to  an  offence  actually  committed 
was  punishable  as  a  principal,  but  whether  any  oflenco  had  in  fact 
been  consummated,  or  the  whole  rested  in  mere  intent 
and  preparation,  as  if  A.  had  supplied  *C.  with  a  stick  [  *237  ] 
for  the  purpose  of  beating  B.,  but  no  battery  had  actually 
taken  place. 

Neither  do  the  cases  relied  upon  appear  to  be  applicable  :  in  that 
of  John  De  Northampton  (7)  it  is  stated,  that  the  letter  was  written 
to  John  Ferrers,  one  of  the  King's  counsel ;  and  the  confession  runs 
thus:  Et  quia  prmdictus  Johannes  cog-noscit  dictam  literam  per  se 
scrip/am  Roberto  de  Ferrers  8fc. ;"  now  if  "  written  to"  merely  im- 
ported the  address  of  the  letter,  which  never  passed  from  the  de- 
fendant, there  was  no  occasion  to  confess  the  writing  of  it  to  Robert 
de  Ferrers,  and  the  very  same  terms  "  written  to  "  are  used  by  Sir 
E.  Coke,  in  his  12th  Report,  to  imply  a  sending  as  well  as  writing. 

The  cases  cited  by  Turton  and  Rokeby  («),  Justices,  are  inappli- 
cable ;  since  in  those  instances  there  was  a  publication  of  the  libel 
to  the  party  defamed. 

Knell  (./•)  was  tried  upon  an  information  charging  him  with  hay- 
ing printed  and  published  a  libel,  entitled  "  Mist's  Weekly  Journal." 
It  was  proved  that  the  defendant  was  a  printer's  servant,  aud  his 
business  was  to  prepare  the  type  for  printing  oil',  which 
business  was  called  composing  *for  the  press;  that  the  [  *238  ] 
defendant  and  another  composed  together  the  libel  in 
question,  taking  the  alternate  columns.  For  the  defendant  it  was 
objected,  1.  that  since  the  defendant  took  a  distinct  part,  that  which 
he  composed  could  not  bear  the  construction  put  upon  the  whole  ; 
and  2dly,  that  since  he  composed  only,  he  could  not  be  found  guilty 
of  the  printing  wherewith  he  was  charged.  It  was  answered  that, 
in  misdemeanors,  an  accessory  iu  part  is  a  principal  in  the  whole, 

(t)  Hob.  62,  216.     12  Co.  35.  (x)  Hill.  8.  G.  9.     BarnaH.  K.  B.  305. 

(0  3  Ins.  174.  D.  L.  L.  26. 

(./)  Hob.  62,  215.     12  Co.  35. 

Vol.  II.  46 


238 


CRIMINAL  DIVISION. 


and,  therefore,  as  the  defendant  assisted  in  the  composing,  a  circum 
stance  essential  to  the  printing,  he,  by  that  act,  made  himself  con- 
cerned in  the  whole ;  that  composing  was  taking  a  copy  in  types, 
which  would  make  the  defendant  a  publisher,  since  it  had  often  been 
determined  that,  the  taking  of  a  copy  of  a  libel  was  an  act  of  pub- 
lication. But  the  Chief  Justice  directed  the  jury  to  acquit  the  de- 
fendant of  the  publication,  and  if  they  believed  the  evidence,  to  find 
him  guilty  of  the  printing,  which  they  did  accordingly  (//) 

Upon  the  whole,  whatever  doubt  may  exist  as  to  the 
[  *239  ]  *criminal  nature  of  the  act,  where  it  is  confined  to  the 
mere  writing,  printing,  or  preserving  of  a  libel,  it  seems 
to  be  perfectly  clear  that  every  person  who  maliciously  lends  his  aid 
to  the  construction  of  a  libel,  subsequently  published,  or  who  con- 
tributes to  the  publication  of  one  already  made,  with  a  knowledge 
of  its  contents,  is  indictable  as  a  principal  for  the  whole  mischief 
produced. 

And  according  to  the  doctrine  laid  down  in  LamUs  case  (V), 
where  a  libel  has  been  published,  proof  that  the  defendant  commit- 
ted it  to  writing,  or,  by  parity  of  reasoning,  did  any  other  act  con- 
tributing to  its  existence,  is  great  evidence  that  he  published  it,  un- 
less he  can  satisfactorily  explain  the  motive  of  his  act. 


(y)  The  defendant  was  afterwards  sen- 
tenced to  stand  upon  the  pillory  twice  and 
to  be  kept  to  hard  labor  in  Bridewell  for 
the  space  of  six  months.  D.  L.  L.  124. 
in  Sir  Francis  Burddfs  case,  Plolroyd, 
J.  expressed  an  opinion  that  the  composing 
and  writing  of  a  libel  with  the  intent  after- 
wards to  publish  it,  amounted   to   a  mis- 


demeanor. In  that  case  there  was  an  actu- 
al subsequent  publication  by  the  defendant, 
and  it  was  held,  by  a  majority  of  the 
judges,  that  there  was  a  sufficient  publica- 
tion within  the  county  where  the  defendant 
had  composed  and  written  the  libel, 
(r)  9  Co.  59. 


CHAPTER   XII. 


Op  the  Defendant's  Intention,  and  Collateral  Circumstances. 

'After  the  observations  which  have  already  been  so    |r  *240  ] 
frequently    made   on   the  subject  of   intention,  little  re- 
mains to  be  said. 

In  point  as  well  of  principle  as  of  precedent,  malice  is  essential 
to  the  offence  constituted  by  any  illegal  communication  (a). 

This,  however,  considered  as  an  universal  rule,  must  be  understood 
of  malice  in  its  legal  and  technical  sense,  as  denoting  in  cases  where 
the  act  itself  is  injurious  and  unlawful,  the  absence  of  legal  excuse  ; 
for  in  the  failure  of  circumstances  which  justify,  excuse,  or  at  least 
modify  the  act,  a  rational  being  must,  in  law  as  well  as  morals,  be 
taken  to  contemplate  and  intend  the  immediate  and  natural  conse- 
quences of  his  act. 

*Wherc  a  party  is  instrumental  to  a  publication  of  that    [  *241  ] 
which  is  noxious  and  illegal,  without  any  moral  blame 
imputable  to  himself,  he  cannot  be  criminally,  even  although  he  may 
be  civilly  responsible. 

A  lunatic  or  madman,  incapable  of  distinguishing  between  right 
and  wrong,  is  not  a  lit  object  of  penal  visitation  [1],  neither  is  a 
party  punishable  who  publishes  a  libel  without  knowledge  of  its  con- 
tents, provided  his  ignorance  wen1  not  in  itself  culpable:  as  where 
a  servant  delivers  a  scaled  letter  without  knowledge  of  its  libellous 
quality,  in  obedience  to  the  command  of  his  master,  and  without 
any  reason  for  supposing  the  order  to  be  illegal. 

But  where  the  act  is  knowingly  and  intentionally  done,  it  is  plain 

(a)  See  Haw.  PI  C.  c.  78,8. 1,6,  Co.  to  constitute  civil  responsibility,  s'upra. 
125,  5.  Mod.  1GG.  Salk.  418  4  Bl.  Comtn.  vol.  I.,  p.  209,  210,  a  fortiori  it  is  essential 
125,  150.     As  malice  is  necessary  in  older     to  make  a  party  criminally  amenable. 

[1]  Insanity  has  been  held  a  good  defence  in  an  action  for  words.  Dickinson  v. 
Barber,  0  Mass.  R.  226.     See  also  Homer  v.  Marshall's  adm'x.  G  Munf.  4G6. 


241  CRIMINAL  DIVISION. 

that  the  mere  absence  of  an  actual  intention  to  injure  cannot  absolve 
from  criminal  responsibility,  when  circumstances  are  wanting  which 
the  law  recognizes  as  supplying  an  absolute  or  modified  justification. 
Where  an  act  is  voluntary,  injurious  in  its  tendency,  and  illegal  in 
its  quality,  it  would  be  contrary  to  all  legal  principle  and  analogy 
to  allow  the  offender  to  justify  or  excuse  himself,  cither  on  the 
oround  that  he  mistook  the  law,  or  that  he  offended  against  the  law 
with  such  goo.d  motives  as  ought  to  excuse  him.     To  allow  the  plea 

of  mistake  would  be  to  confer  a  premium  upon  ignorance, 
[  *242  ]  and  afford  an  excuse  for  every  possible  enormity  ;  to  allow 

every  man  to  set  up  his  own  crude  opinions  against  the 
wisdom  of  the  law,  would  be  at  once  to  overthrow  the  law,  as  an 
universal  rule  of  conduct;  there  is  no  law  when  obedience  is  mere- 
ly optional. 

The  same  principles  apply,  where  a  man  negligently  and  heedless- 
ly does  an  injurious  and  mischievous  act,  without  using  proper 
caution  :  gross  inattention  to  the  interests  of  others  is  morally  as 
well  as  legally  speaking,  sufficient  to  render  the  offending  party 
amenable  for  the  consequences  (6). 
In  the  case  of  the   King-  v.  Harvey  (c),  which  was  one  of  an 

(&•)  It  is  unnecessary  to  cite  authorities  posing  it  to  be  the  latter,  administers  it  to 

to  shew   that,  in   numerous   instances   of  another.     But  it   is   ignorance  of  the  act 

criminal  responsibility,  an  actual  intention  and  its  consequences  which   absolves  from 

to  injure  is  not  material,  and  that  the  wilful  guilt ;  and  even  ignorance  of  the  nature  of 

doing  of  a  noxious  act,  or  the  wilful  omis-  the  act  and  its  probable  consequences  will 

sion  of  a   legal  obligation,   is  sufficient  to  not   absolve,  except  in  the   absence   of  all 

constitute  criminal  responsibility.  carelessness,  negligence,   and   inattention. 

There  is,  it  is  true,  a  distinction  between  If  a  chemist  or  apothecary  were  even  by 

civil  and   criminal  responsibility  in  respect  mistake,  yet   in   consequence  of  negligence 

cfthe  agent's  understanding  and  knowledge  and   inattention,   to   administer  poison  in- 

of  consequences;  one  who  was  so  defective  stead  of  medicine,  he  would  be  criminally 

in  point  of  understanding,  as   to  be  unable  liable  for  the  consequences, 
to  distinguish   between   right   and  wrong,         And  ignorance  to  excuse  from  penal  cen- 

woukl  not  be   criminally  though  he  would  sure  must   be  ignorance  in   fact   and   not 

be  civilly  responsible  for  the  consequences  ignorance  of  law.     Thus,  though  a  person 

of  his  act.  who  without  any   negligence  administered 

And  where  one  who  can  distinguish  poison  instead  of  medicine  would  be  ex- 
right  from  wrong,  does  an  act  which  in  it-  cusable  for  want  of  knowledge  of  the  fact, 
self  is  unlawful,  but  does  it  through  mis-  yet  if  he  were  voluntarily  to  destroy  one 
take  or  ignorance,  but  without  any  blame  who  was  excommunicated  or  outlawed,  he 
even  of  negligence  or  carelessness,  he  would  be  guilty  of  murder,  although  he 
is  not  criminally  responsible;  as  where  a  ignorantly  supposed  that  he  was  bound  to 
man  has  had  poison  delivered  to  him  when  kill  him  when  he  met  him. 
he  asked  for  wholesome  medicine,  and  sup-         (c)  R.  v.  Harvey,  2  B.  &  C.  257. 


INTENTION.  242 

information  against  the  defendant  for  falsely  and  mali- 
ciously publishing  a  libel,  asserting  that  the  King  *was  af-    [  *243  ] 
flictcd  with  mental  derangement,  the  jury,  having  inquir- 
ed from  the  Court  whether,  in  order  to  convict  a  defendant  for  the 
publication  of  a  libel,  a  malicious  intention  must  not  have  existed  in 
his  mind,  the  Chief  Justice  answered,  that  a  person  who  publishes 
that  which  is  calumnious,  concerning  the  character  of  another,  must 
be  presumed  to  have  intended  to  do  that  which  the  publication  is 
necessarily  and  obviously  calculated  to  effect,  unless  he  can  shew 
the  contrary,  and  the  onus  of  proving  the  contrary  lies 
upon  him.     *And  in  the  case  of  the  King  v.  Sir  Francis  [   "244  J 
Burdett  (c),  where  the  publication  alleged  that  divers 
liege  subjects  of  the  king  had  been  inhumanly  cut  down,  maimed  and 
killed,  by  certain  troops  of  the  king,  the  learned  judge,  in  summing 
up,  informed  the  jury  that  the  intention  was  to  be  collected  from  the 
paper  itself,  unless  explained  by  the  mode  of  publication  or  other 
circumstances,  and  that  if  its  contents  were   likely  to  excite  sedi- 
tion, the  defendant  must  be  presumed  to  intend  that  which  his  act 
is  likely  to  produce. 

The  question  therefore  arises,  what  circumstances  docs  the  law 
regard  as  affording  either  an  absolute  justification,  independently  of 
the  actual  intention  of  the  publisher,  or  a  qualified  or  modified  jus- 
tification dependent  on  the  absence  or  existence  of  malice  in  fact. 

What  circumstances  then  afford  an  absolute  justification  independ- 
ently of  intention. 

The  same  principles  of  policy  and  convenience  which  have  been 
already  observed  upon  in  reference  to  justifications  in  civil  actions, 
apply  also,  for  the  most  part,  (but  with  one  striking  exception,)  to 
criminal  prosecutions. 

Whenever  it  happens  that  the  law,  for  the  sake  *of  ex-  |  *245  ] 
eluding  some  greater  degree  of  inconvenience,  deprives 
individuals  of  their  remedy  by  action,  without  regard  to  the  mischief 
occasioned,  or  the  malice  of  the  author,  the  same  reasons  ordinarily 
exclude  a  criminal  prosecution,  which  would  usually  produce  the 
same  kind  of  inconvenience  even  to  a  greater  extent.  Hence  it  is 
that  no  one  is  criminally  responsible  in  respect  of  any  publication 
duly  made  in  the  ordinary  course  of  any  parliamentary  or  judicial 
proceeding.  Thus,  as  has  already  been  observed,  in  reference  to 
the  civil  remedy,  no  member  of  either  House  is   responsible  in  a 

(c)  R.  v.  Burdett,  4  B.  &  A.  95. 

40* 


245  CRIMINAL  DIVISION. 

court  of  justice  for  any  thing  said  in  that  House,  and  in  such  cases, 
to  use  the  words  of  Lord  Kenyou  (/),  courts  of  law  possess  no 
jurisdiction. 

The  immunity,  which  the  law  for  wise  considerations  thus  extends 
to  publications  made  in  the  ordinary  course  of  parliamentary  or 
judicial  proceedings,  is  confined  to  such  as  are  warranted  by  the  oc- 
casion.    If  a  member  of  either  House  of  parliament  publish  his 
speech  beyond  the  walls  of  the  House,  he  can  claim  no  privilege, 
but  stands  precisely  in  the  same  situation  with   any    other  per- 
son (#■). 
[  *246  ]        *In  the  case  of  the  King  v.  Creevey  (A),  it  was  held, 
that  a  member  of  the  House  of  Commons  was  liable  to  be- 
convicted  on  an  indictment  for  a  libel  on  the  character  of  an  indi- 
vidual, although   the  publication  was  a  correct  report  of  a  speech 
made  by  the  defendant  in  the  House  of  Commons,  and  had  been 
published  by  him  in  consequence  of  an  incorrect  report  having  been 
published  in  other  newspapers. 

So  it  is  also  clear  that  if  any  party  to  a  judicial  proceeding  were 
to  be  guilty  of  any  publication  of  defamatory  matter,  which  was  ex- 
trajudicial and  not  warranted  by  the  ordinary  course  of  proceeding, 
he  could  derive  no  justification  or  excuse  from  the  occasion. 

Lr  the,  case  of  the  King  v.  Salisbury  (**),  it  was  held  that  it  was 
indictable  to  publish  a  scandalous  petition  to  the  House  of  Lords, 
or  a  scandalous  affidavit  made  in  a  court  of  justice. 

As  one  who  faithfully  reports  judicial  proceedings  is  not  civilly, 
so  neither  is  he  criminally  responsible;  the  same  reason  which  ex- 
cludes an  action  in  the  one  case,  repels  a  prosecution  iu  the  other  ; 
although    the   characters  of   individuals  may    casually 
[  *247  "|    suffer  from  the  publicity  of  such  *proccedings,  a  superior 
degree  of  benefit  arises  to  the  public  at  large. 

It  is  a  matter  of  public  policy  not  only  that  the  mode  of  ad- 
ministering justice  should  be  known  to  all,  but  also  that  the  condem- 
nation of  offenders  against  the  law  should  be  publicly  announced  ; 
for  the  conviction  of  any  member  of  society  of  a  crime,  in  many 
respects  operates  in  rem  ;  it  affects  the  state  and  situation  of  the 
individual  as  a  member  of  society,  and  therefore  the  public  have  an 

(/)  R.  v.  Ld.   Abingdon,   1    Esp.  C.         (h)   1  M.  &  S.  273. 
226,   supra  vol.   I.  p.   239  ;  see  also  the        (;')  1  Ld.  Ray.  341  ;  vide  supra  vol.  I, 
King  v.  Wright,  8  T.   R.  293,  supra  vol.     p.  253,  326. 
I.  p.  257. 

(<7)  R.  v.  Ld.  Abingdon,  1  Esp.  C.  226. 
R.  v.  Creevey,  1  M.  &  S.  273. 


JUSTIFICATION.  247 

interest  in  knowing  the  fuet.  It  lias  even  been  held,  that  everyone 
was  bound  to  tak  •  notice  of  an  attainder  in  the  county  where  he  liv- 
ed (/»•;.  it  seems  that  to  publish  even  by  writing  Of  print,  accor- 
ding to  the  truth,  that  a  party  lias  been  convicted  of  a  crime,  is  a 
good  justification  to  a  criminal  charge,  as  well  as  in  a  civil  action. 

It  has  already  been  seen  (/)  that  the  principle  on  which  this  im- 
portant privilege  is  founded  is  limited  both  in  respect  of  the  subject 
matter  reported,  and  of  the  mannt  r  in  which  it  is  reported. 
A<  the  authorities  on  this  subject  have  already  'been  no-    [  *248  ] 
ticed,  it  is  unnesessary  again  to  cite  them. 

And  next  it  has  been  seen  that  it  is,  under  some  modifications,  a 
good  defence  to  an  action  to  shew  that  the  defendant,  at  the  time 
of  the  publication,  gave  such  a  description  of  the  author  of  the  slan- 
der, and  the  words  he  used,  as  would  enable  the  plaintiff  to  recover 
against  him.  And  it  seems  that,  according  to  the  ancient  law,  the 
surrendering  the  author  was  sufficient  to  exempt  a  party  who  repub- 
lished the  slander  from  punishment.  It  appears,  from  the  statutes 
of  Scandalum  Magnatum,  that  no  punishment  was  to  be  inflicted  in 
case  the  defendant  gave  up  the  author  of  the  false  tale,  and  that 
the  imprisonment,  even  after  conviction,  was  to  cease  upon  the  of- 
fender's discovering  the  first  mover  of  slander  (ni). 

It  does  not,  however,  appear  that  such  a  defence  to  an  indictment 
at  common  law  has  ever  been  allowed  ;  nor  could  it  in  principle  be 
admitted  («),  since  the  law  regards  not  the  truth  or  falsity  of  the 
libel,  but  only  its  tendency  to  provoke  and  injure  ;  and,  therefore, 
where  the  matter  is  noxious  and  injurious,  and  immedi- 
ately tends  to  a 'breach  of  the  peace,  the  publisher  cannot  [  *249  ] 
be  allowed  to  protect  himself  by  the  plea  that  he  was  not 
the  author  of  the  scandalous  matter,  but,  on  the  contrary,  that  at 
the  time  of  publication  he  truly  declared  who  the  author  was  [1]. 
But  it  is  to  be  observed,  that  the  making  such  a  disclosure,  at  the 
time  of  publication,  may  be  material  as  evidence  to  rebut  the  infer- 

(jfe)  8  P.  W.  494.  Staunf.  96.  8.  c.  4,  f.  (/)  Vol.  I.  p.  5 
o,  urn],  therefore,  it  has  been  said  that,  ou  (w)  Vol.  I.  p.  176. 
an  indictment  against  one  as  an  accessory  (n)  If  a  highwayman  shall  at  the  gal- 
after  the  ftwt  in  harboring  a  felon,  an  at-  Iowa  arraign  the  justice  of  the  law  and 
tainder  of  the  principal,  within  the  county,  if  those  who  condemned  him,  he  who  pub- 
was  proof  of  the  previous  knowledge  of  Ushee  shall  not  go  unpunished.  4  Head, 
the  attainder.  s'-    Law,  164.  Dig.  L.  L.  82 


[1]  See  Vol.  I.  p.  310,  note  [1]  as  to  the  effect  of  disclosing  the  name  of  the  author 
of  the  slander,  even  in  a  civil  action. 


249  CRIMINAL  DIVISION. 

ence  of  malice,  which  would  otherwise  arise  from  the  contents  of  the 
libel  itself :  as,  for  instance,  if  a  party  to  whom  a  libel  was  published 
shewed  it  to  the  person  reflected  on,  with  a  bona  fide  intention  of 
giving  him  an  opportunity  for  making  an  explanation  which  the 
other  was  entitled  to  demand,  or  with  a  friendly  intention  to  enable 
him  to  exculpate  himself  or  seek  his  legal  remedy. 

And  even  a  subsequent  disclosure  is  usually  regarded  as  a  cir- 
cumstance to  be  considered  in  mitigation,  where  the  fact  of  publica- 
tion cannot  be  -justified.  It  is  usually  more  material  to  the  party 
aggrieved  to  identify  the  anonymous  and  secret  assailant  of  his  rep- 
utation, whether  it  be  for  the  purpose  of  civil  redress  or  future  safety, 
than  to  punish  the  mere  instrument  of  his  malice ;  and  such  a  re- 
paration, though  it  be  tardy,  is  frequently  the  only  one  in  the  power 

of  the  offending  party. 
[  *250  ]  It  is  now  to  be  observed  that  there  is  one  great  *dis- 
tinction  (which  has  already  been  alluded  to,)  between 
justifications  in  civil  and  criminal  proceedings  ;  in  the  latter  the 
truth  is  not,  as  in  the  former,  a  ground  of  justification.  It  has  al- 
ready been  seen  that  the  truth  is  a  justification  in  a  civil  action,  not 
solely  on  grounds  of  extrinsic  and  collateral  policy,  but  also  because 
the  very  foundation  fails  on  which  the  claim  to  damages  might  other- 
wise .be  erected,  that  foundation  being  the  falsity  of  the. defamatory 
charge  (r;).  On  the  other  hand  the  tendency  of  the  defamation  to 
produce  a  breach  of  the  peace,  is  of  the  essence  of  the  offence,  as 
far  as  the  public  are  concerned ;  and,  therefore,  the  truth  or  falsity 
of  the  publication  is  collateral  to  the  offence — the  imputation,  it  is 
obvious,  may  be  not  the  less  provoking  because  it  is  true. 

As  it  is  essential  to  prohibit  all  direct  incitements  and  provoca- 
tions to  break  the  peace  of  society,  by  acts  of  violence  and  outrage, 
so  also  is  it  necessary  to  provide  against  indirect  provocations,  which 
are  not  distinguishable  from  more  direct  attempts  either  in  point  of 
motive  or  of  mischievous  results. 

If  a  party  were  to  send  a  letter  to  another,  directly  soliciting  him 
to  commit  a  breach  of  the  peace,  no  one  could  doubt  the 
[  *251  ]  criminality  of  the  *act.  Were  the  writer  to  go  further 
and  specify  some  wicked  or  dishonorable  act,  as  the 
ground  of  challenge,  or  to  use  expressions  of  contempt  or  abuse  cal- 
culated to  excite  irritation,  and  to  occasion  the  party  addressed  to 
comply  with  the  request,  it  would  readily  be  admitted  that  the  state 

(o)  See  the  Preliminary  Discourse,  and  supra  vol.  I.  p.  229. 


JUSTIFICATION.  251 

of  the  case  would  not  be  altered  for  the  better,  and  even  though  the 
writer  omitted  the  direct  request,  but  used  expressions  just  as  likely 
to  produce  the  same  result,  it  would  be  difficult  to  contend  that  the 
case  was  altered,  either  in  point  of  intention  or  of  probable  con 
quences. 

At  all  events,  therefore,  the  law  is  not  inconsistent  in  admitting 
such  a  justification  in  answer  to  a  claim  for  compensation  in  dama- 
ges, at  the  suit  of  a  guilty  party,  and  in  rejecting  the  same  justifi- 
cation on  a  prosecution  for  the  benefit  and  security  of  the  public 
at  large. 

Some  remarks  on  the  policy  of  admitting  such  a  justification  on 
a  criminal  charge  have  been   made  in  another  place  (/>). 

Whatever   may  have   boon  the  ancient   rule  of  law  upon  the  sub- 
ject, on  this  occasion  it  may  be  sufficient  to  state  what  the   law  of 
England  at  present  is  on   this   point  ;  it  has  now.  long 
been  settled,  that  the   truth   of  a  libel  on  an  'individ-  [   *252  J 
ual   is  no  defence   to  a  criminal  information   or  indict- 
ment (7)  [1]. 

(p)  Sec  Preliminary  Discourse.  it  was    ruled  by  Hobart,  L.  C.  J.  in  the 

(q)   According  to  the  -1th  resolution,  in  Star  Chamber,  that  a  libel  cannot  be  justi- 

the  case  Be  Libel! is   Famous,  5  Co.  125,  lie  1,  though  the  contents  be  true. 
"  It  is  not  material    whether  the  libel  be         In  an  anonymous  case,  11  Mod.  00,  an 

true  or  whether  the    party  against  whom  action  was  brought  for  a  libel;  Holt,  C.J. 

it  is  made  be  of  good  or  ill  fame,  for  in  a  said,  a  man  may  justify  in  an  action  on 

settled    state  of    government    the    party  the  case  for  words  for  a  libel;  otherwise  in 

grieved  ought  to  complain  for  every  injury  an  indictment. 

done  him  in  an    ordinary  course  of    law,         In  the  Kimj  v.  Bickerton,  Str.  4G8,  upon 

and  not  by  any  means  to  revenge  himself  a  motion  for  a    criminal    information    the 

either  by  the  odious  course  of  libelling  or  chief  justice  declared  that  though  truth  be 

otherwise;    he  who  kills  a  man    with    his  no  justification  for  a  libel,  as  it  it  for  de- 

aword  in  a  fight  is  a  great  offender,  but  he  /amatory    words,  yet  it  will  be    sufficient 

is  a  greater  otl'endir  who  poisons  another;  cause   to  prevent  the  extraordinary  iuter- 

for   in   the  one  case  he  who  is  openly  as-  position  of  the  court. 

s. uilted  rany  defend  himself,  and  knows  his  Lord  Coke  gravely  asserts  that  there  are 

adversary,  and  may  endeavor  to  prevent  it;  certain  marks  by  which  a  libeller  may  be 

but  poisoning  may  be  done  so  si  icily  that  known,  "  quia tria sequdntur  defamatorem, 
none  can  defend  himself  against  it,  for  famosnm;  1  PravUatu  ineremenium,  in- 
which  cause  the  offence  is  more  dangerous,  oreose  of  lewdness;  -  Burut  dtcrtmtntupi, 
because  the  offender  cannot  easily  be  decrease  of  money  and  beggary;  9  Con- 
known."  itice    delrimentum,    shipwreck   of    con- 

The  only  authority  cited  by  Lord  Coke  is     science." 
that  of  Lake  v.  Hatton,  Hobart  262,  where 

[1]  In  JVeto-York,  the  law  is  otherwise.  There  the  truth  is  n.  defence  to  an  indict- 
ment, provided  it  be  made  to  appear  that  the  matter  charged  as  libellous  was  published 
with  good  motives  and  tor  justifiable  ends.  A  declaratory  act  was  passed  by  the  Leg- 
islature in  lb05,  whereby  it  is  provided  "  thut  in  every  prosecution  for  writing  or  pub- 


252  CRIMINAL  DIVISION. 

The  law  to  this  effect  being  clearly  established,  it  would  be  su- 
perfluous to  enquire,  in  this  place,  whether,  on  general  principles 

lishingany  libel,  it  shall  be  lawful  for  the  defendant,  upon  the  trial  of  the  cause,  to  give  in 
evidence,  in  his  defence,  the  truth  of  the  matter  contained  in  the  publication  charged 
as  libellous  :  Provided  always  that  such  evidence  shall  not  be  a  justification,  unless  on  the 
trial  it  shall  be  further  made  satisfactorily  to  appear,  that  the  matter  charged  as  libel- 
lous was  published  with  good  motives  and  for  justifiable  ends.  Statutes  of  N.  Y.,  4th 
vol.  Webster  fy  Shinner's  ed.  ch.  90, p.  232.  This  act  was  passed  in  consequence  of  the 
doctrines  held  on.  the  trial  of  the  famous  case  of  The  People  v.  Croswell,  in  which  the 
distinguished  Alexander  Hamilton  appeared  as  the  advocate  of  the  liberty  of  the 
press.  Croswell  was  indicted  for  a  libel  on  Thomas  Jefferson,  then  President  of  the 
United  States  and  convicted  by  the  verdict  of  the  jury.  He  applied  to  the  Supreme 
Court  for  a  new  trial,  and  the  principal  questions  submitted  by  counsel  and  passed  up- 
on by  the  court,  were  :  I.  On  the  trial  of  an  indictment  for  a  libel,  can  the  defendant 
give  the  truth  in  evidence  ?  and  II.  Have  the  jury  the  right  to  decide  both  the  law  and 
the  fact  ?  Justices  Kent  and  Thompson  held  the  affirmative  upon  both  these  questions, 
and  Chief  Justice  Lewis  and  Livingston  the  negative.  The  case  was  argued  in  Feb- 
ruary, 1804.  At  the  succeeding  May  term,  the  Chief  Justice  announced  that  the  court 
were  equally  divided,  in  consequence  of  being  temporarily  composed  of  only  four 
judges,  and  that  the  public  prosecutor  was  entitled  to  move  for  judgment.  No  motion 
was  however  made,  probably  because  on  the  last  day  of  the  session  of  the  legislature  in 
April  1804,  a  bill  entitled  "  An  act  relative  to  libels,'7  had  been  passed  by  both  houses, 
and  delivered  to  the  Council  of  Revision,  who  retained  it  at  the  time  of  the  decision  of 
that  case,  and  with  whom  it  remained  until  the  session  of  1805,  when  it  was  sent  back 
with  objections.  The  principal  objection  was  that  it  did  not  contain  a  restriction  similar 
to  that  incorporated  in  the  act  as  finally  adopted,  viz  :  that  the  truth  should  be  no  jus- 
tification unless  it  should  be  satisfactorily  shewn  that  the  matter  charged  as  libellous 
was  published  with  good-  motives  and  for  justifiable  ends.  The  legislature  acquiesced, 
and  an  act  containing  that  provision  was  accordingly  passed.  The  People  v.  Croswell, 
3  Johns.  Cas.  337  et  seq.  The  principle  of  which  was  subsequently  incorporated  into 
the  Bill  of  Rights,  1  Revised  Statutes  94,  §  21,  and  also  into  the  amended  Constitu- 
tion of  1821,  Art.  7,  §  8.  In  the  amended  Constitution  of  New-York  adopted  in  1846, 
the  same  provisions  were  inserted  in  nearly  the  same  words,  viz  :  "  In  all  criminal  pros- 
ecutions or  indictments  for  libels,  the  truth  may  be  given  in  evidence  to  the  jury;  and 
if  it  shall  appear  to  the  jury  that  the  matter  charged  as  lit  ellous  is  true,  and  was 
published  with  good  mothes  and  for  justifiable  ends,  the  party  shall  be  acquittid;  and 
the  jury  shall  have  the  right  to  determine  the  law  and  the  fact."  See  Laws  of  New- 
York  of  1847,  p.  386. 

Similar  provisions  in  respect  to  the  truth  and  the  motives  of  publication  are  contained 
in  the  constitutions  of  Mississippi  and  Michigan.  The  language  of  the  constitution  of 
Pennsylvania  in  this  respect  is  different.  It  authorizes  the  truth  to  be  given  in  evidence, 
and  empowers  the  jury  to  determine  the  law  and  the  fact  in  prosecutions  for  the  publi- 
cation of  papers  investigating  the  official  conduct  of  officers  or  men  in  public  stations, 
or  where  the  matter  published  is  proper  for  public  information.  The  provision  in  the 
constitutions  of  Kentucky,  Illinois,  Delaware,  Ohio,  Indiana,  and  Arkansas,  is  the  same 
as  that  of  Pennsylvania,  and  so  is  the  provision  in  the  constitution  of  Maine,  except  that 
it  extends  to  publications  respecting  candidates  as  well  as  to  officers  already  in  exist- 
ence. In  the  constitution  of  Connecticut,  provision  is  made  for  giving  the  truth  in  evi- 
dence, and  authorizing  the  jury  to  delermine  both  the  law  and  the  fact.  In  several  of 
the  States,  there  is  only  a  general  provision  in  favor  of  the  liberty  of  the  press,  and  in 


JUSTIFICATION.  252 

of  policy  and  convenience  a  different  nil'-  might  not  be  adopted  in 
order  to  avoid  the  mischief  of  suppressing  the  wholsome  diffusion  of 
truth,  and  such  a  knowledge  of  the  habits  and  characters  of  indi- 
viduals as  is  essential  to  the  interests  of  society.     It  may. 
however,  be  observed,  in  the  first  place,  that  Vithonl  *253  ] 

ing  the  length  of  sanctioning  the  publication  of  truth, 
regardless  either  of  motive,  occasion  or  consequences,  gr<-  it  Latitude 
is  allowed  in  consideration  of  the  convenience  of  Bociety,  and  that 
such  communications  seem  to  be  privileged  whenever  they  are  fairly 
warranted  by  any  reasonable  occasion  or  exigency  :  that  the  penal 
restraint  against  publishing  the  truth  does  not  extend  to  the  creat- 
ing any  civil  liability,  nor,  in  general,  to  oral  communications,  un- 
less they  amount  to  the  most  direct  and  personal  provocations  to 
break  the  peace.  Finally,  it  may  be  remarked  that  the  admitting 
truth  to  be  a  justification  against  a  criminal  charge,  would  be  attend- 
ed with  one  difficulty  and  mischief  so  great,  as,  without 
material  alterations  in  our  *criminal  procedure,  to  be  in  [  *254  J 
effect  insuperable.  As  any  one  may  commence  a  prosecu- 
tion for  a  libel  on  any  other  party,  if  a  justification  of  the  truth  were 
admissible,  the  character  of  an  individual  might  be  made  the  sub- 
ject of  investigation  without  his  authority,  even  without  his  knowl- 
edge, and  without  his  having  any  opportunity  to  defend  himself  ; 
thus  it  would  be  in  the  power  of  any  two  malicious  men  most  effec- 
tually to  injure  and  calumniate  any  other  individual  under  the  pre- 
text of  a  judicial  inquiry. 

9ome  the  subject  is  not  noticeil.  Nothing  is  said  respecting  giving  the  truth  in  evidence 
in  the  constitution  of  South  Carolina,  but  the  Supreme  Court  of  that  State  baa  deol  ured 
the  law  there  to  be,  that  in  prosecution*  for  libels,  the  intention  with  which  the  pu: 
tion  is  ma  If,  as  well  as  the  fart  of  publication  ami  truth  of  the  innuendoes  are  involved 
in  the  general  issue;  and  the  whole  case,  law  as  well  as  fact,  is  resolved  by  a  general 
verdict.  Stale  v.  Allen,  1  MoCord's  It.  625.  tn  Massachusetts,  the  Supreme  Court 
held,  in  1808,  in  the  case  of  The  Commonwealth  v.  Clapp.  4  Mass.  It.  168,  whiota  w  m 
on  an  indictment  for  a  libel,  that  the  defendant  may  not  justify  himself  for  publishing 
a  libel,  merely  by  proving  the  truth  of  the  publication,  but  that  he  m  iy  prove  that  the 
publioationlwns  for  a  justifiable purpose,  and  not  malicious, or  with  the  intent  t..  defame; 
and  where  the  purpose  is  justifiable  (the  court  say)  there  may  be  cases  when  the  truth 
may  be  given  in  evidence. 

In  181'J  the  Legislature  of  New- York  enacted  "  In  an  action  for  libel  or  sla.nl.-r.  it 
shall  not  be  necessary  to  state  in  the  complaint  any  extrinsic  (hots  for  the  purpose  of 
showing  the  application  to  the  plaintiff  of  the  defamatory  matter,  out  of  whioh  the 
cause  of  action  arose;  but  it  shall    lie    Buffioientl  f.  that    the  s  line  was 

published  or  spoken  concerning    the    plaintiff.      An  1  if  such  allegation  be  OOntroTertad, 

the  plaintiff  shall  be  bound  to  establish  on  trial    that  it   was  so  published  or  spoken." 

Code  as  amended,  1819,  sec.  164. 


254  CRIMINAL  DIVISION. 

These  reasons,  which  have  been  urged  as  the  ground  of  rejecting 
evidence  of  the  truth  of  a  libellous  charge  as  a  complete  defence  to 
an  indictment  or  information,  apply  to  cases  where  the  prosecutor  is 
guilty  of  the  criminal  or  immoral  act  imputed  :  in  other  instances, 
the  same  principles  apply  with  a  still  superior  force,  strengthened 
by  circumstances  peculiar  to  themselves. 

Thus,  where  the  libel  consists  in  the  holding  up  an  individual  to 
ridicule,  by  ex-posing  some  personal  deformity,  in  a  lampoon  or  print, 
the  truth  of  the  representation  would  certainly  aggravate  the  ridicule 
and  would  by  no  means  lessen  the  malice  of  the  author  (r). 

With  respect  to  libels  against  religion,  or  morality, 
[  *255  ]  the  *permitting  such  a  defence  would  be  attended  with 
consequences  almost  too  absurd  to  mention.  Suppose  a 
person  to  publish,  that  no  overruling  Providence  exists  ;  or  that,  to 
break  a  promise  or  an  oath  is  a  virtuous  act — could  the  discussion  of 
such  questions  be  tolerated  in  a  court,  or  brought  to  issue  before  a 
jury  ?  or  would  proof  that  indecent  transactions  have  actually  oc- 
curred, supply  any  excuse  for  the  public  exhibition  of  them  in  a  print 
or  a  pamphlet  ? 

Where,  however,  an  indictment  is  expressly  framed  upon  the  stat- 
utes of  Scandalum  Magnatum,  it  may  be  doubted  whether  the  truth 
would  not  supply  a  defence,  since  the  words  false  and  lies  are  used 
as  descriptive  of  the  offence  (s). 

In  the  next  place,  there  exists  an  important  and  numerous  class 
of  cases,  in  which  the  law,  consulting  the  general  convenience  and 
the  exigences  of  society,  extends  a  qualified  protection,  dependent 
on  the  question  whether  the  party  has  acted  bona  fide  on 
[  *256  ]  an  occasion  recognized  by  *the  law,  or  has  merely  used 
the  occasion  as  a  color  and  pretext  for  doing  mischief. 
This  most  important  limitation  seems,  on  principles  of  public  policy 
already  adverted  to  in  discussing  the  grounds  of  civil  liability,  to 
extend  to  all  publications  made  in  the  fair  discharge  of  any  public 
or  private,  or  legal  or  moral  duty,  of  which  the  ordinary  exigences 
of  society,  or  the  party's  own  private  interests,  require  the  perform- 
ance. 

(r)  Dig.  L.  L.  16.    S  Bac.    Ab.  45.     4  quo    minus   animo    injuriandi,  id  factum 

Bac.  Ab.    51G.     King  v.  Roberts,  cor.  Ld.  presumatur,  contrarii  tamen   probatiouem 

Hardwicke.     Puta  si   alter  poenam  delicti  hie    admittendam.     Vinn.    in.    In.    Just, 

sui  sustinuerit,  aut  in  vitium   naturale  ob-  lib.  4. 

jiciatur,  claudus  aliquis,  luscus,  aut  gibbo-  (s)  See  12  Rep.  133.     2  Mod.  150. 
sus  vocetur  veritatem  conviciinonexcusare 


INTENTION— OCCASION. 

This  principle  seems  to  comprehend  all  publications  on  subjects  of 
general  and  public  concern  to  which  the  author  -  an  Interest 

in  common  with  the  rest  of  the  community. 

Every  one,  as  it  seems;  has  a  right  to  publish  that  which,  in  his 
opinion,  will  tend  to  enlighten,  instruct,  or  even  amuse  mankind; 
he  who  attains  his  oi.jcct  may  justly  be  regarded  a-  a  benefactor  to 
society  ;  he  who  fails  is  not  amenable  as  a  criminal,  how  me- 

ous  his  views  may  be,  unless  it  plainly  appear  that  his  real  object 
was  not  to  improve  or  benefit  mankind,  but  to  produce  public  mis- 
chief and  disorder  by  alienating  men's  minds  from  their  public  or 
private  duties,  by  base  or  unworthy  means,  by  destroying  their  reli- 
gious faith,  corrupting  their  morals,  or  instigating  them  to  acts  of 
sedition,  tumult,  and  outrage,  or  to  some  other  violation  of  peace. 

Upon  such  principles  it  is  that  no  man  is  punishable  in  respect  of 
the   publication  of  his  opinion  on  subjects  in  which  man- 
kind possess  a  common  interest,  be  they  theological  (/),    [    *257    I 
moral   (?<),  political  (aj),  or  critical  (.//),  provided   his 
communications  be  sincere  and  honest  and  not  used  as  a  cloak  of 
maliciousness. 

The  same  essential  principle  also  governs  communications  affect- 
ing the  characters  of  private  individuals.  No  man  is  punishable  as 
a  criminal  for  a  publication  made  on  an  occasion  which  the  inter 
of  others,  or  even  his  own,  fairly  required  him  to  make,  though  its 
contents  may  convey  an  imputation  on  the  character  of  another 
provided,  such  a  publication  was  called  for  by  the  exigency  of  the 
occasion,  and  was  made  bona  fide  with  a  view  to  the  occasion  with- 
out malice. 

Many    instances,  particularly    that  of  the   King  v.    Bayley  (z\ 
have  already  been  cited  in  illustration  of  the  operation  of  the  .suae 
principle  on  the  question  of  civil  liability;  it  is,  therefore,  unne 
sary  to  repeat  them,  for  the  question  of  civil  and  criminal  liability 
in  the  case  of  libels  reflecting  on  individuals,  seems  in  this  class 'of 
cases  to  be  identical,  whenever  the  publication  of  Mich  a 
libel  is  criminal,  as  concerns  the  public,  it  constitutes  a    [   »258    1 
civil  injury  repairable  in  damages  at  the  suit  of  the  party 
calumniated  (a). 

It  is,  however,  important  to  observe,  in   respect  of  this  class  of 

(/)  Supra,  c.  vi.  (:)  3  Bac.   Ab.   Libel.    A.   2,  cited  by 

(v)  Supra,  o.Tii.  Best,  J.     5  B.    ft   A.   647.     Supra,  vol.  I. 

(i)  Supra,  c.  viii.  315. 
(y)  Supra,  vol.  I.  p.  305.  (a)  Supra,  vol.  I.  p.  268. 

Vol.  II.  47 


258  CRIMINAL  DIVISION. 

cases,  where  the  intention  of  the  publisher  is  the  test  of  civil  or  of 
penal  liability,  that  with  a  view  to  exemption  as  well  as  civil  re- 
sponsibility, the  mere  abstract  intention  of  the  party  cannot  protect 
him,  in  the  absence  of  facts,  which  constitute  an  occasion  recognized 
by  the  law.  The  law  allows  no  man  to  defend  himself  by  saying, 
"  I  did  an  act,  in  itself  injurious,  mischievous,  and  illegal,  but  I  did 
it  with  an  excellent  intention."  And  it  must  also  be  remarked,  that 
a  publication  not  warranted  by  the  nature  and  exigency  of  the  occa- 
sion, cannot  be  justified  in  a  criminal,  any  more  than  in  a  civil  pro- 
ceeding; for  if  the  occasion  does  not  justify  or  excuse  the  act, 
neither,  on  the  principle  just  adverted  to,  can  mere  abstract  good 
intention  supply  a  sufficient  defence  [1] . 


[1]  Thus  it  will  be  seen  that  the  common  law  secures  the  very  right  to  obtain  which 
it  was  supposed  necessary  to  pass  the  act  of  1805,  referred  to  in  page  252,  supra,  note  [1] 
By  that  act  a  defendant  prosecuted  criminally  for  a  libel  is  authorized  in  his  defence  to 
give  in  evidence  the  truth  of  the  matter  charged  as  libellous,  but  cannot  do  so  unless  it 
be  made  to  appear  that  the  matter  charged  as  libellous  was  published  with  good  motives 
and/or  justifiable  ends.  At  the  common  law,  a  defendant  prosecuted  criminally  cannot 
give  the  truth  in  evidence  in  his  defence;  but  he  may  show  the  occasion  upon  which  the 
publication  was  "made,  and  if  it  be  on  a  subject  of  general  and  public  concern  in  frhich 
he  has  an  interest  in  common  with  the  rest  of  the  community,  or  if  the  business  tran- 
sactions of  others,  or  even  his  own,  require  the  making  of  the  communication,  he  is  not 
punishable,  provided  the  communication  be  sincere  and  honest,  and  not  used  as  a  cloak 
of  maliciousness.  In  one  respect  indeed,  the  statute  is  not  as  broad  as  the  common  law. 
The  former  authorizes  the  truth  of  the  matter  alleged  to  be  libellous  to  be  given  in  evi- 
dence in  defence,  provided  the  motive  of  the  author  be  pure  and  the  end  of  the  publica- 
tion justifiable  ;  whereas  the  latter  excuses  the  author  on  showing  that  the  occasion  was 
such  as  to  justify  the  publication,  without  requiring,  or  even  permitting  the  truth  of  the 
matter  to  be  <nven  in  evidence,  provided  the  communication  was  made  bona  fide  with  a 
view  to  the  occasion  without  malice. 

In  criminal  prosecutions  for  libels  the  proof  of  good  motives  and  justifiable  ends  in  the 
making  of  the  publication,  is  required  to  justify  the  party.  It  was  so  held  under  the 
provisions  in  the  constitutions  of  both  J\Tev)-York  and  Massachusetts.  The  People  v. 
Barlhelemy,  2  Hill,  248;  The  Commonwealth  v.  Bonner,  9  Metcalf,  410. 


CHAPTER  XIII. 


Proceeding  against  Offendebs. 

The  proceedings  againsl  offenders  are  either  summary.    [  *259  ] 
as  by  their  immediate  apprehension  and  imprisonment ; 

by  attachment,  by  binding  over  to  their  good  behavior;  or,  in  the 
more  usual  mode,  by  information  [1]  or  indictment.  The  summary 
process  is  in  general  founded  upon  contemptuous  language  ami  re- 
flections applied  to  those  who  preside  in  courts  of  justice  and  their 
proceedings;  and  such  contempts  arc  either  direct,  where  a  judge 
or  magistrate  is  openly  insulted  in  the  execution  of  his  office,  or 
consequential,  where  the  offender,  by  speaking  or  writing  contemptu- 
ously of  the  court,  or  its  judges  in  their  judicial  capacity,  reflects 
upon  the  authority  by  which  they  were  appointed,  and  creates  a  pre- 
judice against  the  administration  of  justice.  And  first,  where  the 
insult  is  offered  in  the  face  of  the  court  by  the  use  of  contumelious 
language,  demonstrating  the  want  of  that  respect  and 
regard  which  is  essential  to  the  preservation  of  *its  au-  [  *2G0  ] 
thority,  the  offender,  it  is  said,  may  be  instantly  appre- 
hended, fined,  or  imprisoned,  at  the  discretion  of  the  judge,  without 
further  examination  («). 

This  doctrine  appears  to  extend  to  all  cases  where  contemptuous 
words  are  spoken  in  the  presence  of  a  magistrate  in  the  actual  dis- 
charge of  his  duty.  As  if  a  man  sin  mid  say  to  a  justice  of  the  peace 
in  the  execution  of  his  office,  "  You  arc  a  rogue  (b)  and  a  liar," 
or  tell  the  judge  of  a  Court  Lect  that  he  is  a  fool  (c),  or  ifi  for- 
sworn (77),  or  say — "If  I  cannot  have  justice  here,  1  will  have 
it  elsewhere."  And  though  the  judge  may  eleel  to  proceed  in  the 
summary  mode,  yet  if  he  does  not,  the  offender  is  Liable  to  an  indict- 

(a)  Cro.  Eliz.  78.     2   Roll.   Ah.   78.     4  (c)  Cro.  KHz.  78. 
Bl.  Comm.  286.  Saund.  P.  0.  73,  b.  (,/)  2  Boll  Ab   7- 

(b)  Str.  420.  Ow.  113.    Mo.  470.  Cro.  (<)  1  Bid.  144.     1  Kcb.  608. 
El.  581. 

[1]  See  note  [1]  p.  272,  post. 


260 


CRIMINAL  DIVISION. 


raent,  since,  wherever  a  justice  may  commit  for  a  contempt,  the 
party  may  be  indicted  for  the  misdemeanor  (/)• 

Where  the  contempt  is  not  offered  immediately  in  the  face  of  the 
court,  but  consists  in  insolent  comments  upon  the  court  or  its  pro- 
ceedings, or  in  the  indecent  publication  of  matters  still 

*261  ]  pending,  the  effect  of  which  may  be  to  create  *prejudice 
and  partiality,  and  thereby  to  hinder  the  fair  administra- 
tion of  justice,  the  proceeding  is  by  attachment,  which  is  a  process 
from  a  Court  of  Record,  awarded  by  the  justices  at  their  discretion, 
upon  a  suggestion,  or  upon  their  own  knowledge  (g-)  or  by  imposing 
a  fine. 

It  appears,  generally,  that  an  attachment  may  be  granted  by  any 
of  the  superior  courts  of  Westminster  Hall  against  any  persons 
guilty  of  contempts  against  them.  So  a  Court  of  Gaol  Delivery 
may  impose  a  fine,  and,  as  it  seems,  punish  by  attachment,  for  a  con- 
tempt in  prematurely  publishing  portions  of  proceedings  still  pend- 
ing, in  contempt  of  the  prohibition  of  the  Court  (A), 

And  a  judge,  at  Nisi  Prius,  may  fine  a  defendant,  on  his  trial  for 
a. misdemeanor,  for  contemptuous  and  offensive   expres- 
[  *2G2  ]    sions,  applied  *to  the  judge  in  the  course  of  making  his 
defence  (i). 


(/)  Str.  420. 

(y)  2  Haw.  213.  vid.  Wils.  300. 
(h)  In  the  case  of  The  King  v.  Clement, 
(4  B.  &  A.  218,)  it  was  held,  that  a  court 
of  gaol  delivery  had  power  to  prohibit  the 
publication  of  any  part  of  the  proceedings 
against  several  persons  charged  with  high 
treason,  until  the  whole  should  be  brought 
to  a  conclusion.  And  it  was  held,  that  a 
fine  imposed  by  the  court  on  the  editor  of  a 
newspaper,  for  a  contempt  in  publishing 
those  proceedings,  contrary  to  such  order, 
was  legal,  although  the  fine  was  imposed 
in  his  absence,  service  of  notice  to  appear 
to  answer  for  the  contempt,  having  been 
served  at  the  office  at  which  the  newspaper 
wa.5  published  according  to  the  st.  38  G.  III. 
c.  78,  s.  12. 

(i)  R.  v.  Davison,  4  B.  &  A.  329.  Ab- 
bott, C.  J.  in  giving  his  judgment  observed 
"  If  I  thought  that  the  decision  I  am  about 
to  pronounce,  could  have  the  effect  of  re- 
straining any  person,  who  may  hereafter 
stand  on  his   trial,  for   making  a  bold  as 


well    as    a    legitimate   course  of  defence, 
I  would  pause  before  I  pronounced  that  de- 
cision.    The  question  indeed,  is  a  moment- 
ous one.     It  is   absolutely  a  question  whe- 
ther the  law  of  the  land  shall  or  shall  not 
continue  to  be  properly  administered.  •  For 
it  is  utterly  impossible  that  the  law  can  be 
so  administered   if  those  who   are  charged 
with  the  du1;y  of  administering  it,  have  not 
power   to   prevent  instances  of  indecorum 
from  occurring  in  their  own  presence.  That 
power  has  been  vested  in  the  judges,  not  for 
their  personal   protection,  but  for  that   of 
the  public;  and  a  judge   will  depart  from 
his  bounden  duty  if  he   forbears  to  use    it 
when  occasions  arise  which  call  for  its  ex- 
ercise    1  quite  agree  that  this  power,  more 
especially  where  it  is  to  be  exercised  on  the 
person  of  a  defendant,  is   to  be  used  with 
the  greatest  care  and  moderation.     But  if 
the  publication  of  blasphemy  and  irreligion 
cannot  in  any  other  way   be   prevented,  in 
my  opinion,  a  judge  will  betray   his  trust 
who  does  not  put  it  in  force." 


ATTACHMENT— CONTEMPT. 

When  a  party,  not  present  in  court,  publishes  any  contemptuous 
expression  against  the  court  or  its  proceedings,  the  court  will,  upon 
an  affidavit  of  the  fact,  make  a  rule  upon  him  to  show  cause  why  an 
attachment  should  not  be  granted  against  him;  and  in  Bome  cases, 
where  the  offence  is  of  a  very  flagrant  nature,  will  grant  an  attach- 
ment in  the  first  instance  [1]. 

Upon  a  rule  granted  (k)  against  the  defendant  Wiatt,  [  *2 
to  shew  cause  why  an  attachment  should  not  issue  against 
him  for  publishinga  libel  on  the  Court  of  King's  Bench,  the  defend- 
ant shewed  by  affidavit  that  his  fault  was  not  wilful,  but  merely 
through  ignorance;  that  he  had  the  lihel  from  one  Crownfield,  a 
printer  in  Cambridge;  that  it  was  in  Latin,  a  language  which  the 
defendant  did  not  understand  :  and  that  he  did  not  know  who  was 
the  author,  otherwise  than  by  a  letter  which  he  received  from  the 
printer,  and  which  was  affixed  to  the  affidavit  by  which  letter  it  ap- 
peared that  Dr.  Middleton  was  the  author.  On  this  it  was  moved 
that  the  rule  should  he  discharged ;  but  the  rule  was  continued  on 
the  defendant  until  he  made  out  his  allegation  against  the  printer, 
who  was  therefore  joined  in  the  rule,  that  both  of  them  might  be 
before  the  court.  In  the  next  term,  Dr.  Middleton  (/)  appeared, 
and  confessed  that  he  was  the  author  of  the  book ;  the  rule  was  then 
discharged  against  the  publisher  and  printer,  and  the  doctor  was 
committed  until  further  consideration.  After  a  few  days'  confine- 
ment he  was  brought  into  court,  fined  £50,  and  bound  to.  his  good 
behavior  for  a  year. 

A  rule  (tri)  was  granted  to  shew  cause  why  an  at- 
tachment* should  not  issue  against  Elizabeth  Mayer  and     [  *264  ] 
Dowling,  for  publishing  a  libel  on  the  proceedings  of  the 
court  in  the  trial  of  Lady  Lawley.     Elizabeth  Mayer  produced  an 

(k)  8  Mod.  128.  (m)  Mich.  8  G.  If.    1782.    2  Barnard. 

(0  Fort.  R.  201.  43,  K.  B. 

[1]  In  The  People  v.  Freer,  1  Caines,  484,  518,  the  defendant  was  brought  before 
the  Supreme  Court  for  a  publication  apparently  intended  to  prejudice  and  influence  the 
public  mind,  and  to  intimidate  the  court  in  deciding  a  motion  pending  for  a  now  trial. 
A  rule  was  granted  to  show  cause,  and  the  defendant  not  appearing  at  the  appointed 
day,  an  attachment  was  issued  against  him.  On  being  brought  into  court,  he  cleared 
himself  of  all  intentional  disrespeot  or  contempt.  The  court  under  the  peculiar  circunv* 
stances  of  the  case,  and  in  the  hope  that  the  notice  taken  of  the  conduct  of  the  d< : 
ant,  would  serve  as  a  warning  to  others,  inflioted   only  a  nominal  fine.     -  the 

cases  of  Hollingsworth  v.  Dtutne,  Wallace's  EL  77;  Bayard  t.  Potman  .  .  138; 

and  Respublica  v.  Oswald,  1  Dallas,  819.  in  which  attachment-  were  issued  for  publi- 
cation in  reference  to  causes  pending  in  court. 

47* 


264  CRIMINAL  DIVISION. 

affidavit,  stating,  that  her  husband  kept  a  pamphlet  shop  ;  that  in  his 
absence  Vaughan  came  to  the  shop  and  asked  for  Lady  Lawley's 
trial ;  that  she  did  not  know  that  it  was  in  the  shop,  but  searching 
found  it,  and  refused  to  sell  it  to  Vaughan,  but  permitted  him  to 
read  it.  The  court  said  it  was  beyond  all  question  that  attachments 
had  been  granted  in  such  cases,  and  particularly  alluded  to  Dr. 
Middle  toil's  case.  The  court,  in  general,  agreed  to  discharge  the 
rule  as  to  her,  and  said  they  could  not  make  the  rule  absolute  as  to 
Dowling,  because  there  was  no  affidavit  of  service. 

A  rule  having  been  (11)  obtained  to  shew  cause  why  an  informa- 
tion should  not  be  granted,  the  defendant,  on  being  served  with  the 
rule,  shewed  his  disregard  of  it  in  very  contemptuous  language. 
Upon  a  motion  for  an  attachment,  grounded  upon  this  contempt, 
Northcy,  Attorney-General,  insisted  that  he  ought  first  to  be  heard 
to  shew  cause  against  it ;  but  the  court  said,  "  He  shall 
[  *265  ]  answer  it  in  custody,  for  it  is  to  no  purpose  *to  serve  him 
with  a  second  rule  who  has  slighted  and  despised  the 
first ;  it  would  be  to  expose  the  court  to  further  contempt." 

And  where  the  court  apprehend  that  the  attachment  will  be  forci- 
bly resisted,"  they  will  order  the  sheriff  of  the  county  (o)  to  take 
with  him  a  force  sufficient  for  its  due  execution.  But  it  seems  that 
the  court  will  not  grant  an  attachment  (j?)  in  the  first  instance,  un- 
less the  words  be  sworn  to  by  two  witnesses,  since  otherwise  it  would 
be  in  the  power  of  one  hardy  man  to  hinder  another  of  an  opportun- 
ity of  defending  himself  before  he  was  deprived  of  his  liberty ;  and 
when  contemptuous  words  are  spoken  of  the  court,  the  rule  for  at- 
tachment is  granted  in  the  first  instance  ;  but  where  they  arc  spoken 
of  its  process,  a  rule  to  shew  cause  (<?)  only  ;  and  the  court  will 
punish  for  contemptuous  words  spoken  on  the  delivery  of  a  declar- 
ation (r)  in  ejectment. 

Where  the  proprietor  of  a  newspaper  was  guilty  of  a  contempt,  in 
publishing  the  proceedings  of  a  Court  of  Gaol  Delivery  contrary  to 
the  order  of  the  court ;  the  court,  on  affidavit  of  the  fact, 
[  *266  ]  and  after  an  affidavit  of  notice  to  the  party  *to  appear  be- 
fore the  court  to  answer  the  contempt  on  a  day  specified 
and  default  made,  proceeded  to  impose  a  fine  of  .£500  ;  and  the 
Court  of  King's  Bench -holding  the  proceeding  to  be  regular,  after- 

(n)   1  Salk.  84.  (q)  Tidd.  428,  vid.  Str.  185,  1068. 

(o)  1  Str.  185.  (r)  Str.  567. 

(p)  1  Str.  185,  3  At.  219,  Say  Rep.  114. 


BINDING  TO  GOOD  BEHAVIOR.  2G6 

wards  refused  a  certiorari  to  bring  up  the  proceedings  into  that 
court  ( s  )  [a  a]. 

When  th !  party  has  1 o  brought  into  court,  he  is  either  commit- 
ted, in  order  to  answer  interrogatories,  or  is  j  ermitted  to  enter  into 
a  recognizance  with  two  Bureties,  in  such  sum  us  the  court  will  di- 
rect, to  appear  and  make  answer  upon  oath  to  such  intern 
rics  ( / )  as  shall  be  exhibited  against  him. 

I  it  is  said  (t*),  that  the  party  cannot  confess  the  contempt 
and  throw  himself  upon  the  mercy  of  the  court,  except  in  ci 

•  and  of  contempts  committed  in  the  face  of  the  court.  If  the 
party  be  discharged  upon  his  recognizance  (x)  to  answer  interroga- 
tories, and  nunc  be  exhibited  within  four  days  after  entering  into 

aizance,  the  court  will  discharge  it  upon  motion  ;  bul  if  no  such 
motion  be  made,  the  court  will  compel  him  to  answer  interrogatories 
exhibited  after  the  four  days.    Upon  these  interrogatories, 
examinations  arc  taken,  and  *it  is  referred  to  the  Master    |     267  ] 
of  the  Crown  Office  to  make  his  report  :  the  party  (% 
then  cither  acquitted  or  adjudged  to  he  in  contempt. 

If  the  party,  in  his  answer,  purge  himself  from  the  charge  upon 
oath,  though  he  is  liable  to  a  prosecution  for  the  perjury  (c),  if  he 
has  sworn  falsely,  he  must  nevertheless  be  acquitted  of  the  con- 
tempt and  his  answer  cannot  (a)  be  disapproved  by  adverse  and  con- 
tradictory affidavits. 

Next,  by  requiring  sureties  of  the  peace,  or  for  the  good  be- 
havior of  the  party. — It  seems  agreed,  that  the  publication  of  a 
libel,  docs  not  amount  to  a  breach  of  the  peace,  but  rests  in  tendency 
only. 

In  Dalton's  Justice  (/>)>  a  libel  is  defined  as  a  thing  tending  to  a 
breach  of  the  peace  ;  in  Sir  Baptist  Bickes's  (  c)  case,  it  is  called  a 
provocation  to  a  breach  of  the  peace  :  and  in  the  King  (>/)  v. 
Summers,  it  was  held  to  be  cognizable  before  justices,  because  it 
tended  to  a  breach  of  the  peace  :  and  in  Hawkin's  Pleas  of  the 
Crown  (e),and  Sir  William  Blaokstone's  Commentaries  (/),alibcl 

(s)  The    Kingy.  Clement,    I   B.    ft   A.  (tt)   1  HI.  Ola.  0.  vide  4  Bl.  Coram.  284. 

218,  supra  (x)  H  or.  P.  C.  22,  B.  1.     5  T.    II.  3(32. 

[a  a]   In  the  case  of  The   King  v.    Oil-  (v)    B.  U.  II. 

ham,  1  If-,  ft  M.  1G5,  it  was  held  thai  ex-  (x)  6  .Mod.  37. 

hibiting   in   an  assize  town   inflammatory  (a)  4  151.  Comra.  288. 

publications  concerning   a  prisoner  about  {!>) 

to  be  tried  at  the   assizes   for  a  crime,  was  (c)   Bob.  224. 

not  a  contempt  which   the  judge  of  assize  (<0   E*T«  189. 

could  interfere  to  prevent   by  commitment.  (c)  c.  73,  s   2. 

(0  Haw.  P.  C.  c.   22,  1.     Barnard.  K.  (/  )  4  Bl.  C.  160. 
B.  6». 


26T  CRIMINAL  DIVISION. 

in  the  criminal  sense  is  also  defined  by  its  tendency.     In 
[  *2G8  ]  the  case  of   The  King  v.  Wilkes,  *the  court  of  common 
Pleas  (g)   gave  a  decided  opinion  to  the  same  effect. 
And  L.  C.  J.  Pratt&observcd,  "  I  cannot  find  that  a  libeller  is  bound 
to  find  surety  of  the  peace  in  any  book  whatever,  nor  even  was  in 
any  case  but  one,  viz.— the  case  of  the  seven  Bishops,  where  three 
Judges  said,  that  surety  of  the  peace  was  required  in  the  case  of 
liber:  Judge  Powell,  the  only  honest  man  of  the  four  judges,  dis- 
sented ;  and  I  am  bold  to  be  of  his  opinion,  and  to  say,  that  the  case 
is  not  law.     Upon  the  whole,  it  is  absurd  to  require  surety  of  the 
peace  in  the  case  of  a  libeller."     And  it  was  held  in  the  above  case, 
that  though  surety  of  the  peace  might  be  required  in  the  case  of 
libel,  it  could  not  exclude  the  privilege  ui    a  rmnibar 
House  of  Parliament,  who  is  entitled  to  privilege  from  arrest,  in  all 
cases  except  treason,  felony,  and  actual  breach  of  the  peace  ;  and 
the  decision  of  the  court  in  the  proceeding  against  the  seven  Bish- 
ops, who  were  committed  to  the  Tower  for  not  entering  into  recog- 
nizances after  having  published  an  alleged  libel,  in  their  petition  to 
the  King,  was  strongly   reprobated  [1].     But  it  has  been  the  prac- 
tice, from  very  early  times,  to  require    security  for  the 
[  *269  ]    good  behavior  from  persons  publishing  contumelious*  and 
disrespectful  words  concerning  ministers  and  officers  of 
justice,  and  their  proceedings. 

It  appears  from  the  3d  Institute  (A),  that  in  the  reign  of  Edward 
the  3d,  John  de  Northampton,  an  attorney  of  the  King's  Bench, 
was  committed  to  the  custody  of  the  marshal,  for  having  written  a 
letter  reflecting  on  the  conduct  of  the  Justice ;  and  that  he  after- 
wards found  six  mainpernors  for  his  good  behavior. 

And  it  seems  that  sureties  for  the  good  behavior  may  be  required 
from  any   person  (i)  who  applies  contemptuous  or    disrespectful 

(g)  2  Wils.  150.  C.  c.  61,  s.  2.    6  Mod.  124.  Holt  654.   St. 

(ft)  174.  420. 

(i)  Cro.   El.   78.     Salk.  697.     Haw.  P. 


[1]  In  Respublica  v.  Duane,  1  Binney  98,  C.  J.  Tilghman  held  that  it  was  most 
agreeable  to  the  spirit  of  the  constitution  of  the  State,  and  most  conducive  to  the  sup- 
pression of  libels  to  adopt  it  as  a  general  rule,  not  to  demand  surety  for  good  behavior 
before  conviction  ;  and  in  conformity  to  these  views,  discharged  from  custody  William 
Duane,  who  had  been  committed  by  the  Mayor  of  Philadelphia  on  his  refusal  to  give 
sureties  for  good  behavior  in  a  complaint  against  him  for  publishing  a  libel  concerning 
the  Marquis  de  Casa  Yrujo,  the  then  ambassador  of  the  King  of  Spain. 


BINDING  TO  GOOD  BEHAVIOR.  209 

language  to  any  Judge,  Justice  of  the  Peace,  Mayor,  or  other,  civil 
Magistral  i,  though  he  be  not  in  the  actual  execution  of  his  duty  (t), 
and  though  the  wt>rdshave  no  relation  t<>  his  of: 

Ami  tint  tin'  rule  extends  to   general  \\  ment 

spoken  of  such  magistrates  in  their  absence  (In  ;  but  Lord  Holt, 
0.  J.  intimated,  that  this  ought  not  to  in-  done  by  the  offended 
justice,  but  by  one  of  his  bretheren  (/).  Ami  the  same 
learned  Judge,  in  the  Queenv.  Langley  (m)  'after  ob-  [  270  ] 
serving  that  binding  to  the  good  behavior  was  sufficient 
to  secure  the  authority  of  mayors,  added,  that  it  must  be  done 
instantly,  according  to  Dr.  Bonham's  (in  case.  It  Beems,  however, 
from  the  general  current  of  decisions  upon  this  point,  which  are  very 
perplexed  and  contradictory,  that  the  words  must  either  have  been 
spoken  in  the  presence  of  tin'  magistrate  ;  or  if  in  his  absence,  havo 
in  some  way  affected  him  in  his  office.  In  other  cases  it  might  not 
be  prudent  in  a  magistrate  to  commit  for  want  of  sureties,  since  he 
does  it  at  his  peril,  the  case  of  commitment  must  be  expressed  with 
certainty  upon  the  face  of  the  warrant  (o)  ;  and  in  case  it  should  prove 
insufficient,  he  would  be  liable  to  an  action  for  false  imprisonment. 

But  it  seems  to  be  perfectly  clear,  that  for  unmannerly  ( />')  ex- 
pressions, used  in  the  face  of  a  Court  of  Justice,  though  not  applied 
to  the  Court  or  its  proceedings,  or  for  words  spoken  for  the  purpose 
of  deterring  an  inferior  officer,  as  a  constable,  from  the  execution 
(q)  of  his  office,  or  abusing  him  whilst  discharging  his  duty,  the 
offender  may  be  bound  to  his  good  behavior. 

With  regard  to  mere  rash,  quarrelsome,  uncivil  *words  [  *271  ] 
in  general,  it  seems  that  sureties  cannot  be  demanded  from 
the  speaker,  unless  they  either  amount  to  a  direct  solicitation  to 
break  the  peace  or  scandalize  the  government,  by  abusing  those  who 
arc  entrusted  by  it  with  the  administration  of  justice  :  or  We  utter- 
ed with  intent  to  deter  an  officer  from  the  execution  of  his  duty  <  r  I  : 
It  has  been  already  seen,  that  for  a  libel  in  general,  sureties  for 
the  peace  are  not  demandable;  but  where  a  letter  contains  a  direct 
challenge,  the  same  security  for  the  good  behavior  may  be  required 
as  if  the  words  had  been  spoken. 

(*)  See  ante,  note  (i),  P-  269.  (o)  Per  Walmesly,  i„      Dean's    case, 

(k)   Cro.  El.  78.     1   Lev.  52,  c.    2,  s.  3.  Cro.  El.  G89. 

11  Mod.  117.     Cro.  Eliz.  G8D.  contni.  (;>)   1  LeT.  1"7.     1  8 

(0  12  Mod.  514.  ('/)  Haw.  P.  C.  c.  Gl.  s.  2.  3. 

(m)  G  Mod.  124.  (O   Haw.  P.  C.  c.    Gl,  B.  •"..    Cro.  Car- 

(n)  Stiles,  251.  408,4'J9.     Cro.  EL  286.    PaL126. 


271  CRIMINAL  DIVISION. 

It  is  said,  a  recognizance  to  keep  the  peace  may  be  forfeited  by- 
mere  words,  but  they  must  directly  tend  to  a  breach  of  the  peace, 
as  by  a  challenge  to  fight  in  the  party's  presence  (s). 

By  the  stat.  60  G.  III.  and  1  Geo.  IV.  s.  16,  it  is  declared 
and  enacted  that,  any  of  his  Majesty's  courts,  or  any  justice  of  the 
peace,  before  whom  any  person  charged  with  having  printed  or 
published  any  blasphemous  or  seditious  libel,  shall  be  brought  for 
the  purpose  of  giving  bail  upon  such  charge,  shall  make  it  a  part 
of  the  condition  of  the  recognizance,  that  the  person  so  charged 
shall  be  of  good  behavior  during  the  continuance  of  such  recog- 
nizance. 

(s)  4  Burn's  Jus.  303. 


CHAPTER  XIV. 


Proceeding  by  Information'. 

•With  the  exception  of  those  cases  where  a  defendant  [  *27J  J 
has  been  guilty  of  a  contempt,  no  punishment;  can  be  in- 
flicted upon  him  for  any  malicious  publication,  unless  he  shall  have 
been  previously  convicted  of  the  fact  upon  the  oath  of  twelve  Jur- 
ors. There  are  two  modes,  by  either  of  which  the  matter  may  be 
subjected  to  their  verdict  ; — by  an  information,  exhibited  in  the 
name  of  the  King,  or  by  the  finding  of  a  bill  by  a  Grand  Jury  [1]. 

Informations  are  of  two  descriptions  ;  they  are  either  filed  by  the 
Attorney-General  as  the  immediate  officer  of  the  crown, 
or  by  the  master  of  the  Crown  Office  upon  the  complaint  [  '273  ] 
of  a  private  individual.  The  objects  of  those  informa- 
tions which  arc  filed  by  the  Attorney-General,  are  such  offences  as 
manifestly  tend  to  excite  and  produce  some  great  public  mischief : 
but  in  what  cases  it  may  be  necessary  to  call  in  aid  this  process  is  a 

A'ote  by  the  author.     As  to  the  great  an-  since  in  the  first  place,  informations  are,  in 

tiquity  and   acknowledged  legality   of  the  point  of  law,  no  more  connected  with  the 

proceeding  by   information,  see  the  argu-  Bubject  of  libel  than   they  are  with  any 

mentof  Sir  Bartholomew  Shower,  1  Show,  other  misdemeanor;  and  in  the  Beoon  1,  do 

Rep.  106;  4  BL  Comm.  805,  whence  it  ap-  doubt  can  possibly  rest  upon  the   l< 

pears  to  have  been  as  ancient  as  the  law  it-  °*  a  practice  which  has  prevailed  for  oentu- 

self.    To   introduce  any  discussion  upon  ««,  and  been   sanctioned  by  at  least  two 

the  subject  of  informations  would   be  in-  «*S   of  the   legislature.    4  and   6  W.  aud 

consistent  with  the  object  of  this  treatise;  M-  c-  ls-     43  G-  1IL  ° 


[1]  By  the  6th  article  of  the  amendments  of  the  Constitution  of  the  United  States, 
H  is  provided  that  "  no  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infa- 
mous crime,  unless  on  a  presentment  or  indictment  of  a  grand  jury,  except  in  cases 
arising  in  the  land  or  naval  forces,  or  in  the  militia  when  in  actual  service  in  time  of 
war,  or  public  danger."  The  same  provision  is  contained  substantially  in  the  constitu- 
tions of  the  several  States  of  New- York,  Ohio,  Tennessee,  Indiana,  Maine,  Mkhigan, 
Arkansas,  Alabama,  North-Carolina;  and  in  the  constitutions  of  the  States  of  Pennsyl- 
vania, Kentucky,  Mississippi,  Iirmois,  Delaware  and  Missouri,  the  proceeding  by  in 
formation  in  criminal  prosecutions  is  expressly  prohibited. 


273  CRIMINAL  DIVISION. 

matter  resting  in  the  discretion  of  that  officer,  whose  duty  it  is,  as 
the  immediate  agent  of  the  crown,  to  bring  under  the  cognizance  of 
the  court  all  offences  and  abuses  which  are' of  so  dangerous  a  nature 
as  to  render  immediate  attention  necessary. 

In  case  of  libels,  this  power  has  been  exercised  where  they  tend 
to  subvert  religion  or  morality  ;  to  excite  discontent  against  the 
constitution,  the  King,  or  his  government ;  to  involve  the  country  in 
foreign  wars, .or  to  excite  particular  classes  of  people  to  acts  of  tu- 
mult and  outrage ;  but  it  has  not  been  usual  for  the  Attorney-Gene- 
ral to  interfere  where  the  libel  has  affected  a  private  individual 

only. 

With  respect  to  informations  granted  by  the  Court  of  King's 

Bench. 

These  were  formerly  filed  at  the  suggestion  of  the  applicant  by 
the  master  of  the  Crown  Office,  and  at  the  discretion  of 
f  *274  1    that  officer,  without  any  *direct  application  to  the  court ; 
but  the  practice  was  put  an  end  to  by  st.  4  and  5  W.  and 
M.  c.  18,  which  enacts,  that  the  clerk  of  the  crown  shall  not  file  any 
information  without  an  express  direction  from  the  Court  of  King's 
Bench.     It  may  be  proper  to  adduce  a  few  instances,  to  show  the 
general  principles  by  which  the  judges  of  the  Court  of  King's  Bench 
have  been  cruided  in  the  exercise  of  this  branch  of  their  jurisdiction, 
and  to  refer  to  the  regulations  which  they  have  thought  fit  to  make. 
The  court,  it  seems,  will  grant  a  criminal  information  in  respect 
of  any  publication  which  manifestly  and  directly  tends  to  produce 
any  public  mischief  or  inconvenience. 

As,  for  publishing  general  reflections  on  the  clergy  of  a  particular 
diocese  (b).     For  offences  tending  to  obstruct  or  prevent  the  ordi- 
nary course  of  justice,  as  by  publishing  invectives  against  a  judge  and 
jury,  by  whom  a  defendant  has  been  found  guilty,  with  a  view  to 
brino-  into  suspicion  and  contempt  the  administration  of  justice  (c). 
So  where  a  defendant  on  a  criminal  information  filed  against  him, 
published  hand-bills  in  the  assize  town  shortly  before  the 
[  *2Y5  ]    *trial  was  to  have  taken  place,  vindicating  his  own  char- 
acter and  reflecting  on  that  of  the  prosecutor  (</)• 
So  the  court  will  grant  a  criminal  information  for  publishing  in  a 
newspaper  the  evidence  given  before  a  coroner,  accompanied  with 

(b)  R.  t.  Williams,  5  B.  and  A.  595.         (c)  R.  v.  White,  1  Camp.  C.  359. 
Though    no     particular     prosecutor    was         (d)  R.  v.  Jolliffe,  4  T.  R;  285. 
named,  and  though  the  libellous   matter 
was  not  negatived  by  affidavit. 


PROCEEDING  BY  INFORMATION.  276 

comments,  although  the  statement  be  correct,  and  the  party  w<  I 
not  influenced  by  any  malicious  motive  (e). 

Where  a  corporation  made  an  order,  and  entered  it  on  their  books, 
stating,  thai  A.  I).,  against  whom  a  jury  had  found  a  verdict,  with 
large  damages,  in  an  action  for  a  malicious  prosecution  for  perjury, 
which  verdict  had  been  confirmed  by  the  Court  of  Common  J'i 
was  actuated  by  motives  of  public  justice,  in  preferring  the  indict- 
ment; it  was  held  to  be  a  libel,  reflecting  on  the  administration  of 
justice,  for  which  an  information  ought  to  be  granted  (  /  ). 

So  an  information  will  be  granted  where  the  libel  reflects  on  a 
body  of  men,  though  no  individuals  in  particular  be  pointed  out. 
A-  if  the  libel  tend  to  raise  tumult-  and  disorder  among  the  people. 
by  exciting  their  hatred  against  a  whole  class  of  men. 

•Thus  the  court  granted  an  information  against  the  de-  |  *276  ] 
fendant  for  publishing  a  paper  containing  an  account  of 
a  murder  lately  committed  upon  a  Jewish  woman  and  her  child,  by 
certain  Jews  lately  arrived  from  Portugal,  and  living  near  Broad 
Street,  because  the  child  was  begotten  by  a  Christian,  in  consequence 
of  which,  as  appeared  on  the  affidavits,  many  Jews,  in  different  parts 
of  the  city,  had  been  threatened  with  death,  if  they  appeared  abroad. 
and  had  been  barbarously  treated  (g). 

In  the  case  of  the  King-  v.  Staples  (A),  an  information  was  granted 
against  the  defendant,  for  having  published,  in  a  newspaper  called 
the  York  Journal,  that  Richard  Thompson,  an  alderman  of  York 
and  a  justice  of  the  peace,  was  scandalously  guilty  of  telling  a  lie 
in  divers  companies,  viz  :  that  the  said  Staples  had  asked  Mr.  Thomp- 
son's pardon  for  publishing,  in  the  same  newspapers,  that 
he,  Mr.  Thompson,  was  married  *to  one  Mrs.  W.,  and.    |      _T7 
upon  granting  the  information,  Page'  J.  observed,  that  the 
applying  of  such  words  to  a  magistrate  was  an  aggravation. 

The  defendant.  Staples,  published  in  a  newspaper,  an  affidavit  of 
bastardy,  which  he  stated  to  have  been  -worn  before  Sir  W.  Bill 
a  magistrate,  by  a  woman,  without  its  having  been  read  by  her  ;  and 
the  court,  on  granting  the  information,  were  of  opinion,  that   the 

• 

(e)  R.  v.  Fleet,  1  B.  and  A.  379.  for  these  words,  in  :i  letter  to  a  mayor,   "  I 

(/)  R.x.  Watson,  2  T.  B.  am  sure  you  will  not  be  persuaded  from 

(</)  R.  v.  Orme,  2  Salk.  224,  and  see  1  doing  justice   by  any  little  arts  of  your 

Ld.  Ray.   486.     R.   v.    Osborne,  Sess.  C.  towu-clcrk,  whose  consummate  malice  and 

260.     2  Barnard.  138,  1GG,  Kel.  230.  wickedness  against  me  and  my  family  will 

(h)  And.  228.     Dig.  L.  L.  80.     See  also  make  him  do  any  thing,  be  it  ever  so  vile." 

Lofft,  4G2.     So  an  information  was  granted  R.  v.  ll'aite,  1  Wils.  22. 

Vol.  II.  48 


277  CRIMINAL  DIVISION. 

publication  of  the  affidavits  was  punishable,  though  no  scandalous 
reflections  were  made  upon  the  case,  especially  as  they  tended  highly 
to  defame  a  magistrate. 

The  defendant  (i),  in  a  conversation  about  a  warrant  which  had 
been  granted  by  Mr.  Kent,  a  justice  of  the  peace,  asked  if  Mr.  Kent 
was  a  sworn  justice,  and  being  answered  that  he  was,  replied,  "  If 
he  is  a  sworn  justice,  he  is  a  rogue  and  a  forsworn  rogue ;"  but  the 
court  refused,  an  information,  saying,  it  is  not  the  same  insult  and 
contempt  as  if  spoken  to  him  in  the  execution  of  his  office,  which 
would  make  it  a  matter  indictable.  So  where  the  defendant  (&) 
said  of  a  justice  of  the  peace,  "  He  is  an  old  rogue  for  sending  his 
warrant  to  me,"  the  court  refused  an  information,  leaving  it  to  the 

party  to  proceed  by  indictment. 
[  *278  ]        *Where  the  libel  imputed  to  a  naval  (Z)  commander 

the  want  of  courage,  knowledge,  resolution,  and  veracity  ; 
to  a  peer  (m),  that  he  acted  improperly  as  a  president  of  a  court- 
martial,  and  that  he  had  been  guilty  of  perjury,  the  court  granted 
informations.  The  defendant  (n)  published,  in  a  newspaper  entitled 
The  Gazetteer,  the  following  libel  on  the  Earl  of  Clanricarde,  whose 
countess,  to  whom  he  had  been  semetime  married,  was  then  living, 
"  Last  night  the  Right  Honorable  the  Earl  of  Clanricarde  was  mar- 
ried, at  St.  Mary's  Church,  to  Madame  Carolina,  a  celebrated  dan- 
cer, belonging  to  the  theatre  at  Smock  Alley,  and  last  Saturday  they 
appeared  in  the  boxes  at  Crow  Street  Theatre :  she  had  jewels  on 
computed  at  upwards  of  £3000."  An  information  was  granted.  So 
where  the  libel  (o)  imputed  treasonable  designs  to  a  nobleman,  an 

information  was  granted.  And  the  court  will  grant  in- 
[  *279  ]    formations  without  regard  to  the  *rank  (p)  or  dignity  Of 

the  parties  traduced,  whenever  their  immediate  interfer- 
ence appears  to  be  necessary  for  the  purposes  of  justice  (jq). 

An  information  was  exhibited  against  the  defendant  Brown,  for 
printing  and  publishing  in  a  newspaper,  called  "  The  Royal  Chro- 
nicle," a  libel  (r),  entitled  "  An  authentic  narrative  of  several  par- 
ticulars relating  to  the  death  of  Miss  Frances  Lynes,  whose  ghost  is 

(t)    The  King  I.  Pocock,  Str.  1157.  of  a  town>  for  sendinS  to  a  nobleman  a  li- 

(A-)  R.  v.  Lee,  12  Mod.  514.  cense  to  keeP  a  Public    house-     ™Wor  of 

(Z)  Trin.   32  G.  II.     The  King  v.  Dr.  Northampton's   case,  1  Str.  422.     So  for 

„      ,.  ,,  representing  a  bishop  as  a  bankrupt.     Hil. 

^m)   The  King  v.    Philip    Thicknesse,  T.  1812.     Russel  228. 

Esq.    Hil.  3  G.  III.  D.  L.  L.  86.  (?)  Doug.  387.     R.  v.  Sate. 

(«)  Tr.  T.  1  G.  III.    Dig.  L.  L.  83.  (9)  Bac.  Ab.  tit.  Lib.  494. 

(o)   Doug.  387.    So  against  the  mayor        (r)  E.  T.  2  G.  III.  D.  L.  L.  84. 


PROCEEDING  BY  INFORMATION.  -7'' 

supposed  to  have  haunted  a  house  in  Cock  Lane,  West  Smith- 
field,  for  many  nights  past,"  tending  to  traduce  and  vilify  the  repu- 
tation of  one  William  Eent,and  to  represent  and  cause  it  to  be  be- 
lieved, that  the  Baid  William  Cent  had,  by  artful  meana  and  cir- 
cumstances, obtained  and  procured  the  Last  will  and  testament  of 
the  said  Frances  Lynes,  Bpinster,  Bince  deceased,  to  be  made,  and 
unjustly  to  cause  the  validity  of  the  Baid  will  to  be  called  in  qn 
and  also  to  raise  groundless  suspicions  concerning  the  death  of  the 
said  Frances  Lynes  ;  and  also  to  cause  a  false  and  Bcandaloufl  report 
raised  and  propagated  by  means  of  public  newspapers,  that 
spirit  or  ghost  of  the  said  Frances  Lynes  haunted  the  house  of  one 
Parsons  in  Cock  Lane,  to  be  believed  and  credited  in  order  to  injure 
and  oppress  the  said  William  Kent. 

*Mr.  Willy  Sutton  was  tried  for  the  murder  of  Miss  [  *280  ] 
Bell,  at  the  Old  Bailey,  on  which  occasion  his  innocence 
appeared  to  be  so  clear,  that  the  jury  interfered  before  the  learned 
judge,  who  presided,  had  begun  to  sum  up  the  evidence.  An  in- 
formation was  afterwards  granted  (s)  against  Thomas  Holland  for 
writing  a  libel  on  Sutton,  in  a  phamphlet,  entitled  "A  most  circum- 
stantial account  of  that  unfortunate  young  lady,  Miss  Bell,  otherwise 
Sharpe." 

It  is  not  necessary,  as  a  foundation  for  an  information,  that  the 
libel  should  charge  a  criminal  act;  such  an  information  has  been 
granted,  where  the  object  of  the  libel  was  to  hold  the  applicant  up 
to  ridicule  (£).  But  it  seems  that,  in  general,  the  imputation  must 
be  of  a  personal  nature  to  induce  the  court  to  interfere,  and  that  it 
is  not  sufficient  that  it  tends  to  lessen  a  man  (  u )  in  his  trade. 

In  the  case  of  the  King  v.  Roberts,  an  information  was  refused 
against  the  defendant   (x)  for  having  published,   in  a 
newspaper,  that  Ward's  {tills  and  drops   had  done  great   [  *281   ] 
mischief  in  twelve  different  cases,  and  that   they  were  a 
oomdound  of  poison  and  antimony. 

When  a  motion  ( // )  was  made  for  an  information  against  the  de- 
fendant for  publishing  reflections  upon  the  African  Company  in  one 
of  the  newspapers,  by  charging  them  with  having  supported  their 
trade  by  treachery  and   fraud,  the  court  refused  to  in  jon- 

(s)  Dig.  L.  L.  82.     East.  T.     1  G.  III.        (u)  An  lr.  229.  -  Butnud.  K.  13.  183 

R.V.Holland.  Dig.  L.  I..  90,  i  Baa   A  ■    192. 

(0  R.  v.  Benfidd,  2  Burr.  98.').     As  for         (x)  Dig.  L.  L.  90.     1!  ic.   Ab.  tit.  Lib. 

singing  songs  in  the  streets,  reflecting  on  492. 

the    prosecutor's   children,  with  intent  to         (y)    The  King  v.   Roberts.     Dig.  L.  L. 

destroy  her  domestic  happiness.     lb.  89.     2  G.  II.  17 


281  CRIMINAL  DIVISION. 

sidcring  the  matter  nothing  more  than  a  dispute  upon  a  matter  of 
trade ;  but  the  court  granted  a  rule  to  show  cause  why  an  infor- 
mation should  not  be  granted  for  a  libel  against  the  New-York  Build- 
ings' Company,  charging  them  with  raising  the  value  of  their  stock 
by  getting  £100,000  under  (2)  the  credit  of  their  seal. 

In  general  where  there  is  reason  to  suppose,  from  the  circumstan- 
ces under  which  the  party  published,  that  the  act  did  not  proceed 
from  a  mere,  malicious  intention,  the  court  will  not  interfere  by 
granting  an  information. 

The  defendant  (a)  advertised,  that  one    Maddox,  an  apothecary, 

had  personated  Dr.  Crow,  a  physician,  and  taken  his 
[  *282  ]  fees,  and    an  information  *was  refused,  the  apothecary 

not  pretending  to  deny  the  charge.  When  a  man  adver- 
tised in  a  public  newspaper,  that  his  wife  had  eloped  from  him,  and 
cautioned  all  persons  against  trusting  her,  an  information  for  a  libel 
being  moved  for,  it  was  denied,  because  it  was  the  only  way  (6)  the 
husband  could  take  to  secure  himself. 

It  was  advertised,  in  one  of  the  newspapers  (c),  that  Lady  Mor- 
dington  kept  an  assembly  in  Moorfields,  upon  which  Lord  Mording- 
ton  advertised,  that  the  person  calling  herself  Lady  Mordington 
was  an  impostrix,  and  that  there  was  no  such  person,  except  his 
wife,  who  always  lived  with  him.  Upon  motion  for  an  information 
it  was  refused  by  the  court,  since  the  term  impostrix  was  properly 
applied  to  one  assuming  the  title  without  any  right. 

So  where  the  imputation  is  contained  in  a  petition  drawn  up  for 
the  purpose  of  obtaining  redress  for  an  injury,  and  not  with  an  in- 
tention to  asperse  the  prosecutor,  the  court  will  not  grant  an  infor- 
mation, though  the  publication  impute  fraud  to  the  prosecutor,  since 

it  is  no  more  than  is  alleged  in  every  bill  in  chancery. 
[  *283  ]       *The  defendant  (d)  complained,  in  a  writing  directed 

to  General  Wills  and  the  four  principal  officers  of  the 
Guards,  in  order  to  be  presented  to  the  king,  that  Captain  Carr, 
after  inducing  him  to  part  with  a  warrant  for  some  money  due  to 
him  from  government,  under  the  pretence  of  procuring  payment  for 
him,  received  the  money,  and  refused  to  pay  it  to  the  defendant. 
Upon  motion  for  an  information,  the  court  held  that  the  petition 
was  no  libel. 

(z)  2  Barnard.  K.  B.  114.     R.v.Nutt,  (c)    R.  v.  Jenneur,  Easter  8  G.  II.  Bac. 

D  .  L.  L.  78.  Ab.  tit.  Lib.  492. 

(a)  R.    v.    Sickerton,  Str.   498.     R.  v.  (d)  R-  v-  BayUg,  suPra>  257>  and  vol.  I 

Webster,  3  T.  R.  388.     Dougl.  270,  371.  315-  Andr-  229-  3  Bac-    Ab"  tit-  Lib-  492" 

(6)   R.  v.  Enes,  Andr.  229.  D.  L.  L.  89. 


PROCEEDING  BY  INFORMATION.  283 

Miss  Mary  Jerome  (c),  a  Quaker,  residing  at  Nottingham,  hav- 
ing acted  in  disobedience  to  the  rules  prescribed  by  the  sect  of 
which  Bhe  was  a  member,  by  frequenting  places  ofpubiio  diversion, 
going  into  mourning  for  the  death  of  a  relation,  and  by  other  trans- 
gressions of  a  similar  nature,  the  society,  after  many  fruitless  re- 
monstrances and  other  useless  attempts  to  reclaim  her,  proceeded 
at  last  in  the  customary  way  to  pronounce  the  sentence  of  expul- 
sion, which,  having  I n  approved  of   at   monthly  meeting,  was 

afterwards  read  by  the  defendant,  Francis  Hart,  as  clerk  of  their 
meeting.  The  sentence,  after  charging  Miss  Jerome  with  having 
imhihed  erroneous  notions,  contrary  to  Scripture  doc- 
trine and  'having  acted  in  various  parts  of  her  conduct  [  *284  ] 
very  inconsistently  with  a  life  of  self-denial,  and  of  hav- 
ing neglected  to  attend  the  meetings  for  divine  worship,  and  recit- 
ing the  fruitless  attempts  of  the  society  to  reclaim  her  from  error. 
and  to  bring  her  to  the  acknowledgment  of  truth,  both  in  judgment 
and  practice,  proceeded  to  declare  her  no  longer  in  unity  with  the 
society.  Miss  Jerome,  being  acquainted  with  this  proceeding,  sent 
her  maid  servant  to  the  defendant  for  a  copy  of  the  sentence,  which 
he  transcribed  and  enclosed  to  her  under  cover  ;  but  upon  applica- 
tion to  the  court  for  an  information  against  the  defendant,  they  re- 
fused even  a  rule  to  show  cause. 

Next,  as  to  the  rules  prescribed  to  those  who  apply  to  the  court 
for  leave  to  file  criminal  informations.  In  general  the  applicant 
must  waive  his  right  of  action  (/)  ;  and  this  is  an  advantage 
which  the  defendant  derives  from  this  mode  of  proceeding  ;  for,  if 
convicted  under  an  indictment,  the  prosecutor  would  still  be  at  lib- 
erty to  bring  his  action  to  recover  damages.  Where,  however,  the 
court,  on  hearing  the  whole  matter,  are  of  opinion]  that 
it  is  a  proper  subject  for  an  'action,  they  will  give  the  [  *285  ] 
party  leave  to  bring  (§■)  it. 

The  court  (//)  will  not  grant  an  information,  unless  the  applica- 
tion be  made  recently  after  the  cause  of  complaint  shall  have 
arisen  (i). 

(e)  2   Burn's   Ecclesiastical  Law,   779.  (/i)  Bac.  Ab.  tit.  Libel,  4'.'-_'. 

Di».  L.  L.  39.  (<)  Pridtaux  v.  Arthur, I.ofltr393.  An 

(/)  R.  v.  Sparrow,  2  T.  It.  198.     The  application    for    a    criminal     in  formation 

prosecutor  may  be  put  to  his  election  beforo  against  a  magistrate  must  be  made  so  early 

information  granted,  after  that    time  it   is  in  the  MOOod  term  after  the    offenoe,  as  to 

of  course  to  stay   proceedings  in  an  action  enable  him  to  ihon  OMM  in  that  term.  R. 

for  the  same  libel.     lb.  t.  Marshall,  18  List,  182.    R.  v.  Taylor, 
(a)  2  T.  R.  198. 

48* 


285  CRIMINAL  DIVISION. 

Where  the  same  libel  reflects  on  several,  it  is  not  necessary  that 
all  should  join  in  the  application,  or  that  the  names  of  all  should  be 
specified,  since  the  conviction  on  one  information  would  be  a  bar  to 
any  other  ;  it  being  one  single  offence,  though  every  person  injured 
would  severally  be  entitled  to  maintain  an  action  (&). 

The  application  must  be  accompanied  with  affidavits,  clearly  and 

specifically  stating  the  circumstances  of  the  case  (7)  ;  these  ought 

not  .to  be  entitled,  and  if  they  are,  cannot  be  read:  those 

*286  ]  *produced,  on  showing  cause,  may  (m)  or  may  not  be  en- 
titled ;  but  all  affidavits,  after  the  rule  is  made  absolute, 
must  be  entitled  («). 

On  a  motion  for  an  information  against  A.  an  affidavit,  in  a  motion 
against  B.,  cannot  be  read,  since  the  person  who  made  it  would  not 
be  liable  to  an  indictable  for  perjury,  though  it  should  be  false  (o). 
But  in  the  case  of  the  King  v.  Joliffe  (/?),  a  criminal  information 
having  been  granted  against  the  defendant,  he,  before  the  trial  at  Nisi 
Prius,  distributed  hand-bills  in  the  assize  town,  vindicating  his  own 
conduct,  and  reflecting  upon  the  prosecutor's.  This  matter  being  dis- 
closed to  the  judge  at  Nisi  Prius,  was  held  to  be  a  sufficient  ground 
to  put  off  the  trial ;  and  that  affidavit  having  been  returned  to  the 
court  of  King's  Bench,  another  information  was  granted  on  it  against 
the  defendant ;  the  affidavit  taken  at  Nisi  Prius' being  considered  as 
taken  under  the  authority  of  the  court  above.  The  affidavit  should 
set  forth  the  libel  ((/),  its  .application,  and  the  fact  of 

*287  "  '^publication  by  the  person  against  whom  the  information 
is  prayed. 

And  where  the  application  of  the  libellous  matter  is  indifferent, 
the  court  has  refused  to  grant  the  information,  saying,  that  they  re- 
quired a  seeming  and  apparent  application  to  be  made  (r).  A. 
stated  in  his  affidavit,  that  B.  had  brought  him  a  challenge  from  C. 
and  that  B.  had  refused  to  make  affidavit  that  C.  had  sent  it ;  but 
the  court  held  this  evidence  to  be  insufficient  to  warrant  them  in 
granting  a  rule  nisi  for  a  criminal  information  against  C.  (j). 

Nolan.  204.     And   it  seems  that  such  an  (o)  11  Mod.  141. 

application  would  not  be  allowed  in  the  2d  (p)  4  T.  R.  285. 

term,  where  an  assize  had  intervened.  R.  (q)  It  is  sufficient  to   set  forth  a  copy  of 

v.  Herries,  13  East.  270,  and  see  R.  v.  the  libel ,  without  annexing  the  libel  itself. 

Bishop,  5  B.  and  A.  512.  JR.  v.  Chappel,  Burr.  402. 

(7c)  R.  v.  Griffin,  R.  T.  Hardw.  39.  (r)  Fitzgibb.  57,   pi.  7.  D.  L.   L.  97. 

(1)  Prideaux  v.  Arthur,  Lofft.  393.  Bac.  Ab.  tit.  Lib.  493. 

(m)  1  Str.  704.    Andr.  313.  (s)  R.  v.  Willet,  6  T.  R.  294. 

(ti)  6  T.  R.  642. 


PROCEEDING  BY  INFORMATION.  287 

It  has  frequently  (/)  been  decided,  that  it  is  necessary  for  the 
party  praying  an  information  to  produoe  an  exculpatory  affidavit, 
denying  the  truth  of  the  charge,  since  though  the  truth  be  no  -round 
of  justification  on  an  indictment  for  a  libel,  yet  it  is  a  sufficient  rea- 
son why  the  court  should  not  interfere  in  an  extraordinary  way. 
But  though  the  court,  in  general,  require  that  the  affidavit  shall  di- 
rectly (it)  and  pointedly  aver  the  prosecutor's  innoc< 
of  the  charge,  the  rule  admits  of  Bome  exceptions:  *288  ] 

where  the  party  charged  is  abroad,  and  then  the  pel 
making  the  application  in  his  behalf  is  cxp.'.-t.-d  go  as  far  in  his  affi- 
davit  as  the  nature  of  the  case  admits  of,  by  Bwearing  to  letters  or 
other  intelligence  within  his  reach  (a;). 

So  where  the  charge  is  general  (y),  no  exculpatory  affidavit  is 
required,  since  it  would  be  absurd  to  require  a  man  to  -wear  that  he 
was  not  a  traitor  or  a  thief:  neither  is  it  i.  where  the  party 

is  accused  of  having  \i>(^\  criminal  language  in  parliament,  since  by 
the  express  provision  of  the  Bill  of  Rights,  what  passes  there  can- 
not be  questioned  elsewhere  (z  ). 

Where  a  libel  stated  that  the  Duke  of  Athol  was  held  in  such 
general  abhorrence  in  the  Isle  of  Man,  if  he  should  obtain  an  act, 
then  depending  in  parliament,  it  would  occasion  (a)  a  revolt,  the 
court  held,  that  no  affidavit  from  the  duke  was  necessary. 

Where  the  libel  reflects  on  a  public  body  of  men,  an  information 
will  be  granted,  without  any  exculpatory  affidavit,  on  an 
affidavit,  stating  the  *purchase  of  the  newspaper  contain-  [  *289  ] 
ing  the  libel,  and  that  the  defendant  was  the  publisher  or 
proprietor  of  the  paper  (/>)• 

After  the  rule  to  show  cause  has  been  gran  ted  upon  the  prosecu- 
tor's affidavits,  it  seems  that  affidavits  in  confirmation  may  be  pro- 
duced ;  but  that  a  supplementary  affidavit,  if  introductory  of  new 

(0  Str.  4^8.    Andr.  229.  8  Bao.   Ab.  (*)  1  W.  and  M.mm.  2,  o.  2,art.  9. 

tit.  Lib.  492.     Barnard.  K.  B.  13.     R.  v.  (a)  Doug.  387,  in  the  note. 

Miles,  Doug,  184.  R.y.  Wright,  2  Chitty  (6)  R  v.    William*,  6  B.  and  A.  595, 

1G2.    So  an  information  was  refused  to  the  fbr  a  libel  on'thc  clergy  of  the  diccese  of 

first  sender  of  a  challenge.    R.  v.  llunkcy,  Durham.     So  also  in  the  case  of  R.  v.  Je- 

1  Burr.  31G.  "0I"".  1:I  (;-  ni  /l>-  v-  -iWertoii,  28  G    II. 

00  R.    v.    Miles,   Doug.  288.      It   is  R.  v.  Holloway  ami  Jllcn  16  G.,111.  for 

usual  to  negative  the   charge  in  the  words  publishing    a  libel  on  the   justices  of  the 

of  the  charge.     R.  v.  Wright,  2  Chitty's  peace  for  the  county  <*f  Middlesex,  in  a 

Rep  1G2.  pamfhlet  oalled  the    Wit   Trap,    charging 

(x)  R.  v.  Bate,  Dou"\  387.  tlh-'"1  witn  igBO**no«  aiul  corruption  in  the 

(y)  R.  v.  Bate,  Doug.  387.    R.  v.  Has-  execution  of  their  office. 
well,  ib. 


289  .  CRIMINAL  DIVISION. 

matter,  is  not  admissible  ;  but  if  the  new  affidavit  be  partly  con- 
firmatory and  partly  consist  of  new  matter,  the  court  will  not  wholly 
reject  it,  but  distinguish  between  (e)  what  is  new  and  what  is  con- 
firmatory. Though  the  affidavits  of  the  prosecutor  should  be  contra- 
dicted by  those  of  the  defendant,  in  some  circumstances,  the  court 
will  nevertheless  grant  the  information,  if  strong  probable  ground 
be  laid  (d~). 

The  defendant  (e)'  showed  for  cause  against  a  rule  for  an  informa- 
tion, that  the  charge  of  perjury  on  which  the  motion  was 
[  *290  ]  founded  was  true  ;  but  *Sir  J.  Pratt,  C.  J.  said,  "  In 
all  cases,  informations  for  libels  go,  unless  you  can  show 
the  court  some  probable  cause  for  them  to  believe  you  did  not  pub- 
lish it.  Now,  if  you  had  denied  it,  it  would  have  signified  nothing  ; 
for  then  affidavit  stands  against  affidavit ;  therefore,  the, information 
shall  go,  that  the  fact  may  be  tried."  And  Fortescue,  J.  said,  "  It 
would  be  a  strange  thing,  if  a  man  should  be  allowed  to  justify 
when  an  information  is  prayed  against  him,  and  should  not  be  al- 
lowed to  justify  in  the  information  itself  when  it  is  gone." 

But  in  the  case  of  the  King-  v.  Bickerton,  the  chief  justice  de- 
clared, that,  though  truth  be  no  justification  for  a  libel,  as  it  is  for 
defamatory  words,  yet  it  will  be  sufficient  cause  to  prevent  the  ex- 
traordinary interposition  of  the  court,  and  induce  them  to  leave  it 
to  the  ordinary  course  of  justice  before  a  grand  jury  (/).  And 
with  this  doctrine  the  modern  practice  has  conformed. 

The  prosecutor  (g-)  founded  his  application  upon  an  affidavit,  sta- 
ting, that  the  defendant  confessed  to  him  the  publication  of  the  libel ; 
on  the  other  hand  it  was  shown,  that  the  defendant  never  made  any 
such  confession,  yet,  since  the  fact  of  publication  was  not  denied, 

the  information  was  granted. 
[  *291  ]         *By  a  rule  E.  T.  5  G.  II.  where  a  person  has  obtained 
a  rule  nisi  for  a  criminal  information,  and  upon  showing 
cause  the  rule  is  discharged,  the  party  who  (A)   made  the  motion 
shall  pay  the  costs.     But  this  has  been  held  to  be  discretionary. 


(c)  The  King  v.   Kinaslon,  2  Kel.  178.  (g)  R.  v.  Sharp,  Andr.  384. 

Dig.  L.  L.  55.  (h)  See  2  Kel.  61.  pi.  8.     Dig.  L.  L.  97. 

(d)  The  King  v.  Haswetl  and  Bate,  Where  a  complaint  for  an  information 
Doug.  372.  against  a  justice  of  the  peace  proved  to  bo 

(e)  The  King  v.  Dormer,  Barnard.  K.  frivolous,  the  attorney,  as  well  as  the  com- 
B.  13.  Dig.  L.  L.  77.  JR.  v.  Draper,  3  plainant,  was  ordered  to  pay  the  costs. 
Smith  391.  -Rex  v.    Fielding,   2   Burr.   654.    2  Ld. 

(/)  R.  v.  Bickerton,  Str.  498.  Kenyon  386. 


PROCEEDING   BY  INFORMATION.  291 

A  joint  informatio  \i  several  cannot  be  founded  on  distinct 

rules  for  informations  againsl  each  1 1). 

When  ;m  information  ia  filed  by  leave  of  the  court,  it  is  provided 
by  st.  I  and  5  W.  and  M.  c.  L8,  s.  2,  that,  where  the  defendant 
acquitted,  the  court  shall  be  authorized  to  award  costs  to  the  defend- 
ant, unless  the  ju  11,  at  the  trial,  certify  that  there  was  rea- 
sonable cause.     But  it  has  been  held  to  be  compulsory  on  the  court 

to  grant  co<ts  to  the  defendant  in  case  of  hi-  acquittal,  o rtificate 

having  been  granted.  The  certificate  musl  be  granted  at  the  trial, 
and  it  is  afterwards  too  late  to  inquire  whether  there  was  probable 
cause  for  the  prosecution  (&). 

The  process  which  lias  been  issued  in  case  of  *libel  has 
been  cither  against  the  person  of  the  offender  or  his 
papers. 

1.  Against  the  person. 

The  defendant  (7),  Derby,  having  been  committed  upon  the  war- 
rant of  a  secretary  of  state,  for  publishing  a  seditious  libel,  ealled 
the  Observator,  No.  74,  was  brought  before  Chief  Justice  Parker, 
by  habeas  corpus,  and  by  him  discharged  upon  entering  a  recogni- 
zance to  appear  on  the  first  day  of  term.  Upon  that  day  tin1  de- 
fendant took  several  exceptions  to  the  commitment,  and  moved  to 
be  discharged,  insisting,  principally,  that  the  commitment  previous 
to  indictment,  presentment,  and  conviction  for  the  offence  imputed 
to  him,  was  illegal  and  contrary  to  st.  25  E.  III.  st.  5,  c.  4  :  but 
the  court  held  that  he  was  not  entitled  to  his  discharge. 

John  Wilkes  (m)  was  committed  upon  a  secretary  of  state's  war- 
rant for  writing  a  seditious  libel,  entitled  "  ThcNorth  Briton,"  Xo. 
15.  He  was  afterwards  brought  up  by  habeas  corpus,  into  the 
Court  of  Common  Pleas,  and  being  (n)  privileged  as  a  member 

(i)  Ii.  v.  Hay  don,  3  Burr.  1270.  lege  of  Parliament  does  not  extend  to  the 

(k-)  R.v.  Wood/all,  2  8tr.  1181.    Dig.  case  of  writing  and  publishing  seditious 

L  J,,.  08.  libels,  nor  ought  to  be  allowed  to  obstruct 

(I)  R.  v.  Derby,  Fortescuc  140.     Dig,  the  ordinary  course  of  the  laws,  in  the 

L   l   3i,  speedy   and    effectual    prosecution    of    so 

(m)  2  Wilson  159.  heinous  and  dangerous  an  offenoe,"  audit 

(n)  By  the  resolutions  df  both  houses  of  being   D                    ree  with   tl"-  <'>>inmons 

parliament,  it  has  been  decided,  that  priv-  in  the  said  resolution,  it                   i  long 

ilege  does  not  lie  in  the  ease  of  a  seditious  debate,  resorted  in  the  affirmative:     In  the 

libel.     Journal  of  the  Lords,   Die  Martis,  Abbott,   14  East  1.    5 

^embris    i,  Dow.   165.    I  Taunt  401,  which  was  an 

The  8rd  resolution  of  the  House  of  Com-  aotion  againi                          the  House  of 

mons  was  read—"  Resolved,  by  the    Coin-  Commons    br   I                                 imprison- 

mons  in  Parliament   assembled,  that  privi-  ment,  it  was   held   that  the  speaker  of  the 


292  CRIMINAL  DIVISION. 

[  *293  ]     of  the   House  of  Commons,  was   discharged  without 
bail. 

In  the  above  case  (o)  the  court  considered  the  warrant  of  a 
secretary  of  state  to  be  the  same,  force  with  that  of  a  justice  of 
the  peace,  and  that  neither  a  secretary  nor  justice  ought  to  issue  a 
warrant  upon  his  own  private  knowledge  ;  but  that  it  was  unnecessary 
to  state  upon  the  face  of  the  warrant  the  evidence  upon  which  it 
was  granted,  or  even  to  state  in  the  warrant  that  it  was  granted 
upon  any  charge  made.  And  in  the  same  case  it  was  held,  that  the 
words  contained  in  the  warrant  "  for  being  the  author  and 
[  *294  ]  publisher  of  a  most  infamous  and  seditious  libel,  *entitled 
"  The  North  Briton,"  was  a  sufficient  description  of  the 
offence,  since  it  was  known  specifically  by  that  name. 

In  the  case  of  Butt  v.  Conant  (jo),  the  authority  of  a  justice  of 
the  peace  to  issue  his  warrant  against  the  publisher  of  a  libel,  and  to 
commit,  in  default  of  sureties,  was  much  discussed,  and  after  a  con- 
sideration of  all  the  previous  precedents,  it  was  decided  that  justices 
of  the  peace  have  such  authority,  as  well  in  the  case  of  libel  as  of 
all  other  offences,  over  which,  as  justices,  they  have  jurisdiction. 

In  the  above  case,  the  libel  reflected  on  the  characters  of  two 
noblemen,  the  Late  Lord  Ellenborough,  C.  J.  and  Lord  Castlereagh. 
But  it  seems  to  be  clear  that  the  general  doctrine  there  laid  down 
would  apply  to  all  cases  of  libels,  whether  they  were  illegal,  as  re- 
flecting on  the  characters  of  individuals,  or  for  any  other  mischiev- 
ous tendency,  affecting  the  public  (#). 
[  *295  ]  *In  Leach's  case  (r)  the  warrant  from  the  secretary  of 
state  was  couched  in  the  following  terms  :  "  These  are, 
in  his  majesty's  name,  to  authorize  and  require  you  (the  messen- 
gers), taking  a  constable  to  your  assistance,  to  make  a  strict  and 
diligent  search  for  the  authors,  printers,  and  publishers  of  a  seditious 

House  of  Commons  might  lawfully  commit  diately   taken  up  and  held   to  bail.     It  is 

a  member  of  that  house,  in  pursuance  of  not   necessary  to  stand  by  and  see  the  mis- 

an  order  of  the  house  to  that  effect,  upon  chief  spreading  without  attempting  to  in- 

a  resolution  of  the  house,  that  the  plaintiff  terrupt  its  progress;  it  would  be  a  reproach 

had  been  guilty  of  a  breach  of  privilege,  to  the  laws  of  the  country  if  it  were   so; 

in  pvinting  a  libellous  and  scandalous  pa-  and  if  the  magistrates  might  not  arrest  the 

per,    reflecting    on  the    just    rights    and  torch  in  the  incendiary's  hand,  and  before 

privileges  of  that  house.  it  had  set  fire  to  the  building.     Per  Leyces- 

(o)  See  Dig.  L.  L.  51.  ter,  J.  in  his  charge  to  the  jury,  Carnarvon 

(p)  1  B.  and  B  548.  Summer  Ass.  1819. 

(q)  The   publishers  and  distributors  of        (r)  11  St.  Tr.  307. 
impious  and  seditious  libels  may  be  imme- 


PROCEEDING  BY  INFORMATION.  295 

and  treasonable  paper,  entitled  'The  North  Briton,'  No.  45,  and 
them,  or  any  of  them,  having  found,  to  apprehend  and  sieze,  to- 
gether with  their  papers,  and  bring  in  safe  custody  before  me,  to  be 
examined  concerning  the  premises,  and  farther  dealt  with  according 
to  law."  The  messengers,  nnder  this  warrant,  seized  Mr.  Leach 
and  imprisoned  him  for  some  time  ;  but  on  its  being  fonnd  that  he 
was  neither  author,  printer,nor  publisher,he  was  di  I  by  the 

Earl  of  Egremont's  order,  without  even  having  appeared  before  him. 
After  a  verdict  for  the  plaintiff,  the  defendants  carried  the  matter, 
by  a  bill  of  exceptions,  to  the  court  of  King's  Bench,  when  the  sin- 
gle point  decided  was  that  the  defendants  could  not  justify, 
inasmuch  as  they  had  not  acted  in  obedience  to  the  war- 
rant (s). 

•It  is  enacted   by  the  43  0.  III.  c.  58,  s.   1.— "That    [     i 
whenever  any  person   is  charged  with  any  offence  for 
which  lie  may  be  prosecuted  by   indictment  or  information  in  the 
King's  Bench  (not  being  treason  or  felony),  and  the  same  shall  be 
made  to  appear  to  any  judge  of  the  same  by  affidavit  or  by  certifi- 
cate of  the  indictment  or  information  being  tiled  against  such  person 
in  the  said  court  for  such  offence,  such  judge  may  issue  his  warrant 
under  his  hand  and   seal,  and  thereby  cause   such  person  to  be  ap- 
prehended and  brought  before  him  or  some  other  judge  of  the  sam< 
court,  or  before  some  one  justice  of  the  peace,  in  order  to  his  being 
bound,  with  two  sureties,  as  the  said  warrant  shall  express,  with  con- 
dition to  appear  in  the  said  court,  at  the  time  mentioned  in  the  said 
warrant,  and  to  answer  all  and  singular  indictments  or  informations 
for  any  such  offence  :  and  if  he  shall  neglect  or  refuse  to  become  so 
bound,  such  judge  or  justice    may   respectfully  commit  him  to  the 
common  gaol  of  the   county,  city,  or  place,  where  the  offence  shall 
have  been  committed,  or  where   he  shall  have  been   apprehended, 
there  to  remain  until  he  shall  become  bound  a-  aforesaid,  or  be  dis- 
charged by  order  of  the  said  court,  in    term  time,  or  by  one  of  the 
judges  of  the  said  court,  in  vacation  :  and  the    recognizance   to  be 
thereupon  taken  shall  be  returned  and  filed  in  the  said 
'court,  and  shall  continue  in  force  until  such  person  shall    [  *2Q1    ] 
have  been  acquitted  of  such  offence,  or  in  case  of  convic- 
tion, shall  have  received  judgmc.it    for  the  same,  unless  sooner  de- 
clared by  the  said  court  to  be  discharged."     And  the  same  act  fur- 

(s)  By  a  resolution    of   the   House  of    Journ.    Comm.   23   Ap    1766.     And   such 
Commons  it  was    declared,  that  general    were,  by  a  subsequent  resolution,  declared 

warrants  in  the  case  of  libel  are  illegal,     to  be  illegal  in  all  cases.     lb.  25  Ap.  17CG. 


297  CRIMINAL  DIVISION. 

ther  provides,  "  Thqt  in  case  any  defendant  be  committed,  either  by 
virtue  of  such  warrant,  or  by  virtue  of  any  writ  of  capias  ad  respon- 
dendum, for  want  of  bail,  a  copy  of  the  indictment  or  information 
shall  be  delivered  to  him  or  to  his.  gaoler,  with  notice  that  unless  he 
shall  within  eight  days  enter  an  appearance^  plea,  or  demurrer,  to 
such  indictment  or  information,  an  appearance  and  the  plea  of  not 
guilty  will  be  entered  in  his  name  ;  and  that  if  such  defendant  shall 
neglect  eight  .days  to  enter  an  appearance,  and  to  plead  or  demur, 
the  prosecutor  may,  on  affidavit  of  the  service  of  the  copy  and  notice 
enter  an  appearance  and  the  plea  of  not  guilty,  and  proceed  in  the 
usual  course :  and  that,  upon  acquital,  the  judge  before  whom  the 
trial  is  had  (though  not  a  judge  of  the  King's  Bench)  may  order 
such  defendant  to  be  discharged  out  of  custody  as  to  his  aforesaid 
commitment." 

With  respect  to  the  seizure  of  papers,  it  is  said  to  have  been  re- 
solved, by  all  the  judges,  that  where  persons  write,  print,  or  sell  any 
pamphlet,  scandalizing  the  public  or  private  persons,  such 

*298  ]  *books  may  be  seized,  and  the  person  punished  by 
law  (/). 

The  practice  of  issuing  a  general  warrant  to  seize  the  papers  of 
a  suspected  person,  appears  to  have  been  frequently  resorted  to,  in 
former  times,  with  great  abuse,  of  which  the"  case  of  Lord  Coke 
himself  furnishes  an  instance  ;  whose  papers  were  seized  and  carried 
to  the  secretary's  office,  with  some  valuable  securities,  which  were, 
never  returned  to  him  (w).  Insignificant  however  is  a  loss  of  such 
a  nature  when  compared  with  the  more  serious  evils  incident  to  such 
a  procedure,  the  grievous  invasion  of  domestic  peace  and  security, 
and  the  facility  with  which  a  person  might  be  made  responsible  for 
the  contents  of  writings  never  in  his  possession,  or  deprived  of  those 
necessary  for  the  purpose  of  his  defence. 

A  warrant  (x)  was  issued  in  the  name  of  the  Duke  of  Newcastle, 
one  of  the  secretaries  of  state,  directed  to  two  of  the  King's  mes- 
sengers, requiring  them,  taking  a  constable,  to  make  a  diligent 
search  in  the  house  of  Dr.  Earbury,  the  author  of  a  treasonable  paper 
entitled  "  The  Royal  Oak  Journal,"  for  all  papers  of 
[  *299  ]  whatsoever  *kind  in  his  custody,  and  to  bring  the  said 
papers  before  him ;  the  messengers,  without  taking  a  con- 
stable to  their  assistance,  entered  the  defendant's  house,  seized 

(t)  4  Read.  St.  Law  154.  (x)  2  Barnard.  K.  B.  346.    Dig.  L.  L. 

(h)  Dig.  L.  L.  83.  33. 


PB0CBS&-8KIZURE  OF  PAPERS.  299 

his  papers,  and  brought  them  before  Mr.  De  La  Faye,  who  was  the 
duke's  secretary  and  a  justice  of  the  pe 

The  defendant  afterwards  applied  to  the  Court  of  King's  Bench 
to  have  his  papers  restored  to  him,  insisting  that  a  secretary  of  state 
could  nol  legally  grant  a  warrant  to  seize  a  person's  papers.  Lord 
C.  J.  Hardwicke  Baid,  that  as  to  Beizing  the  defendant's  papers  he 
would  not  give  any  opinion  whether  it  was  legal  or  not  :  that  the 
court  of  King's  Bench  could  not  grant  a  rule  upon  the  messenger 
who  did  seize  them  to  restore  them,  and  therefore  that  the  question 
was  not  properly  before  the  court  lor  their  determination. 

J5ut  in  the  great  case  (y)  of  the  seizure  of  papers,  it  was   decid- 
ed that  a  secretary's  warrant  to  search  lor  papers  was  illegal  ;  and 
Ld.  Camden,  C.  J.  observed,  *•  11'  this  point  should   be  determined 
in  l'avor  ol*  the  jurisdiction,  tin-  secret  cabinets  and  bureaus  of  every 
subject  in  the  kingdom  will  be  thrown  open  to  the  seareh  and  in- 
spection of  a  messenger,  whenever  the  secretary  of  slate 
*shall  think  lit  to  charge  or  even  suspect  a  person  to    [  *300    j 
be  the  author,  printer,  or   publisher  of  a  seditious  libel. 
This  power  so  assumed  by  a  secretary  of  state,  is  an  execution  upon 
all  the  parties'  papers  in  the  first  instance  ;  his  house  is  rifled — his 
most  valuable  secrets  wrested  out  of  his  possession,  before  the  paper, 
for  which  he  is  charged,  be  found  criminal  by  any  competent  juris- 
diction, and  before  he  is  convieted  either  of  writing,  publishing,  or 
being  concerned  in  the  paper.     This  power  of  the  secretary  is  not 
supported  by  one  single  citation  from  any  law  book   extant — it  is 
claimed  by  no  magistrate  in  the  kingdom  but  himself.     Papers  are 
the  owner's  goods  and  chattels, — they  are  his  dearest  property,  and 
are  so  far  from  enduring  a  seizure,  that  they  will  hardly  bear  an  in- 
spection ;  and  though  the  eye  cannot,  by  the   law  of  England,  be 
guilty  of  a  trespass,  yet  where  private  papers  are  removed  and  car- 
ried away,  the  secret  nature  of  the  goods  will  be  an  aggravation  of 
the  trespass,  and  demand  more  considerable  damages  in  that  re- 
spect.    "Where  is  the  written  law  that  gives  any  magistrate  such  a 
power  ?     I  can  safely  say  there  is  none  ;  and  therefore  it  is  too 
much  for  us,  without  such  authority,  to  pronounce  a  praetice   to 
be  legal,  which  would  be  subversive  of  all   the  comforts  of   so- 
ciety." 

"  There  is  no  authority  to  show  that  libels  'might  bo  [  *301  ] 
seized,  except  the  opinion  of  the  twelve  judges,  at  the 
close  of  the  reign  of  C.  II.,  who  gave  it  as  their  opinion,  that  no  one 
(y)  Entick  v.  Carrington  and  others,  11  St.  Tr.  317.  19  Howell's  St.  Tr.  1029. 

Vol.  H.  49 


301  CRIMINAL  DIVISION. 

could  legally  expose  to  the  public  anything  that  concerned  the  af- 
fairs of  the  public,  without  license  from  ihe  King.  This  was  quot- 
ed by  C.  J.  Scroggs,  on  the  trial  of  Harris  for  a  libel,  who  extend- 
ed the  doctrine  to  the  seizure  of  all  books,  pamphlets,  and  writing, 
on  matters  of  public  concern." 

And  again,  "  It  is  urged  as  an  argument  of  utility,  that  such  a 
search  is  a  means  of  detecting  offenders  by  discovering  evidence.  I 
wish  some  case  had  been  shown  where  the  law  forceth  evidence  out 
of  the  owner's  custody  by  process." 

"  In  the  criminal  law  such  a  proceeding  was  never  heard  of;  and 
yet,  there  are  some  crimes,  such,  for  instance,  as  murder,  rape,  rob- 
bery, and  housebreaking,  to  say  nothing  of  forgery  and  perjury,  that 
are  more  atrocious  than  libelling ;  but  our  law  has  provided  no 
paper  search  upon  those  occasions  to  help  forward  the  conviction. 
Whether  this  proceedeth  from  the  gentleness  of  the  law,  or  from 
the  consideration  that  such  a  power  would  be  more  pernicious  to 
the  innocent  than  useful  to  the  public,  I  will  not  say." 

"  Observe  the  wisdom  as  well  as  the  mercy  of  the  law.  The 
strongest  evidence  before  trial,  being  only  ex  parte  >  is 
[  *302  ]  but  suspicion, — it  is  not*proof:  weaker  evidence  is  a 
ground  of  suspicion  ;  though  in  a  lower  degree  :  and  if 
suspicion  at  large  should  be  a  ground  of  search,  especially  in  case 
of  libels,  whose  house  would  be  safe  ?  Upon  the  whole,  we  are  of 
opinion,  that  the  warrant  to  seize  and  carry  away  the  parties'  papers 
in  case  of  a  seditious  libel,  is  illegal  and  void." 

And  the  House  of  Commons  {z)  afterwards  came  to  a  resolution, 
declaring  the  seizure  of  papers,  in  the  case  of  libel,  to  be  illegal. 

Since  a  criminal  proceeding  is  in  its  nature  local,  the  offence  must 
be  laid  and  proved  to  have  been  committed  in  the  county  within 
which  the  bill  (a)  is  preferred.  And  the  indictment  may  be  tried 
at  the  quarter  sessions,  before  the  justices  of  the  peace  as  well  as 
before  the  justices  of  Oyer  and  Terminer  (6). 

"With  respect  to  the  technical  mode  of  framing  an  information  or 
indictment,  little  remains  to  be  added  to  the  observations  already 
made  on  the  subject  of  the  declaration  (c). 

All  who  are  in  any  way  concerned  in  the  composition,  writing,  or 
printing  of  the  libel,  with  a  view  to  publication,  may  be  joined  in 

(z)  Jour.  Comm.  25th  April,  1766.  (b)  Haw.  c.  8.  s.  88.    jR.  t.  Summers, 

(a)  4  Read.  St.  Law  155.     8  Mod.  328.     1  Lev.  193. 
Dig.  L.  L.  97  infra,  tit.    Evidence.  (c)  Supra  vol.  I. 


INDICTMENT.  302 

the  information  *or  indictment,  and  charged  as  princi-    [  *303  ] 
pals  (d). 

It  is  not  necessary  to  allege  that  the  matter  published  is  Ealee  : 
such  an  allegation  need  not  bo  proved,  though  it  be  made  on  the 
record  (e)  ;  but  the  illegality  of  the  publication  musl  be  averred  by 
means  of  the  word  maliciously,  or  by  si.nn;  equivalent  term  (  /'  >. 

In  an  indictment,  as  well  as  to  a  declaration,  the  averment  of 
extrinsic  facts  is  unnecessary,  where  the  criminal  quality  of  the  pub- 
lication may  be  collected  from  the  contend;  such  averments  are 
essential  where  the  terms  of  the  libel  are  independently  of  particu- 
lar extrinsic  facts,  innocent  or  unmeaning,  but  are  in  reality  noxious 
and  illegal,  in  connection  with  the  facts  to  which  they  relate.     The 
mode  of  averring  such  extrinsic  circumstances,  an. I  explaining  the 
sense  of  the  libel  in  its  connection  with  those  facts  by  means  of  the 
ordinary  technical  links,  has  already  been  so  far  remark- 
ed upon  that  further  comment  *is  perhaps  unnecessary.    [  *304  ] 
Where  an  information  alleged  that  a  libel  was  published 
of  and  concerning  the  government,  and  the  libel  was  written  in  such 
terras,  that  an  ordinary  person,  on  reading  it,  would  understand  that 
it  was  written  of  the  government  of  the  country,  it  was  held,  that 
any  extrinsic  allegation,  for  the  purpose  of  explaining  the  meaning, 
was  unnecessary  (g-).     And  where  the  information  alleged  that  the 
defendant,  with  intent  to  insinuate  and  cause  it  to  be  believed,  that 
divers  liege  subjects  of  the  King,  had  been  inhumanly  cut  down. 
maimed,  and  killed,  by  certain  troops  of  our  lord  King,  unlawfully 
and  maliciously  published  a  libel  of  and  concerning  the  government 
of  this  realm,  and  of  and  concerning  the  said  troops,  and  the  only 
innuendo  was  applied  to  the  word  dragoons  in  the  libel,  meaning  the 
said  troops  of  our  said  lord  .the  King,  and  meaning  thereby,  that 
divers  liege  subjects  of  our  lord  the  King  had  been  inhumanly  cut 
down  and  killed  by  the  said  troops  of  our  said  lord  the  King;  it 
was  held,  on  motion  in  arrest  of  judgment,  that  this  was  Miniciently 
certain,  without  specifying  what  particular  troops  were  meant  (//). 

{d)   R.  v.  Benfield,  2  Burr.  983,    pi.   3,  (/ )  Sty.   3'J'J,  per  Roll.  C.J.     1  Vin. 

it   was  held,  that  a  joint   information  lay  Ab.  533. 

against  two,  for  singing  a  libellous  song  on  (?)   R-  v.  Burdett,  5  B.  and  A.  314. 

A.  and  B.,  which  abused  first  A.,  and  then  (h)  lb.;  and  see    R.   v.    Horne,   Cowp 

B.;  and  it  was  hell,  that  if  each  had  sung  CS'J,  supra,  vol.   I.   p.    891.     To  the    illus- 

scparate  stanzas,  the  one  reflecting  on  A.;  trations  already  adduced,  vol.  I.  p.  407,  to 

the  other  on   B;  the  otfence   would  still  show  the  naturo  and  use  of  prefatory  aver- 

have  been  joint.  ments  and  innuendoes,  may  be   added  the 

(e)  R.  v.  Burke,  7  T.  ft.  4.  following — Goldstein  v.  Foss,  0  B.  and  C. 


304 


CRIMINAL  DIVISION. 


[  *305  ]  "Unless  a  libellous  and  criminal  meaning  be  either  ap- 
[  *306  ]  parent  on  the  face  of  the  alleged  libel,  or  *can  be  col- 
lected from  the  terms  of  the  libel,  as  connected  with  ex- 
trinsic circumstances,  no  innuendo  will  either  make  the  publication 
criminal,  or  subject  the  publisher  to  a  civil  action  (i). 

An  indictment,  that  the  defendant  scripsit,  fecit,  et  publicavit, 
sen  scribi  fecit,  et  publican  causavit,  has  been  held  to  be  too  un- 
certain (&).. 

When  some  special  intention  is  essential  to  the  *offence,  such  in- 
tention must  be  described  according  to  the  truth  and  the 
[  *307  ]     nature  of  the  offence.     Where  the  libel  has  been  publish- 


152.  In  the  introductory  part  of  the  de- 
claration, it  was  alleged,  that  the  plaintiff 
was  the  secretary  of  a  society  called  "  The 
Society  of  Guardians,  for  the  protection  of 
Trade  against  Swindlers  and  Sharpers," 
and  the  nature  and  object  of  the  society 
was  also  averred ;  the  declaration  then  al- 
leged the  publishing  of  the  libel,  as  a 
printed  report,  by  the  secretary,  contain- 
ing, (inter  alia,)  that  the  plaintiffs  were 
reported  to  the  society  as  improper  to  be 
proposed  to  be  balloted  for  as  members 
thereof,  with  an  innuendo,  thereby  then 
and  there  meaning  that  the  plaintiff  was  a 
swindler  and  sharper,  and  an  improper 
person  to  be  a  member  of  the  said  society. 
And  it  was  held,  on  a  motion  in  arrest  of 
judgment,  that  the  libel  was  not  suffici- 
ently connected  with  the  introductory  mat- 
ter, and  that  without  such  matter  the 
words  were  not  in  themselves  actionable. 

In  the  case  of  Stocklcy  v.  Clement,  4 
Bingh.  162,  the  first  count  alleged,  that 
the  plaintiff  was  lawfully  possessed  of  a 
bill  of  exchange,  accepted  by  Frances  Page 
Turner,  widow;  that  such  acceptance  was 
a  true  and  genuine  acceptance ,  and  that 
the  defendant,  intending  to  charge  the 
plaintiff  with  having  forged  and  feloniously 
uttered  the  said  bill  of  exchange,  published 
of  and  concerning  the  said -plaintiff  and 
the  said  bill  of  exchange,  the  following 
libel:— 

11  To  bill-brokers  and  others — caution — 
reward — Whereas  information  has  been 
given  to  me,  that  attempts  have  been  made 
to  obtain  the  discount  of  a  bill  of  exchange 


bearing  date,  London,  May  26th,  1825 
and  purporting  to  be  drawn  by  one  John 
Stockley,  upon  and  to  be  accepted  by  the 
Dowager  Lady  P.  Turner,  for  £6000,  with 
interest,  payable  twelve  months  after  date, 
to  the  order  of  the  said  J.  Stockley. — I  do 
hereby  give  notice,  on  behalf  of  the  Dow- 
ager Lady  P.  Turner,  that  she  has  not  ac- 
cepted such  bill,  and  that  if  her  name 
should  appear  on  any  such  instrument* 
the  same  has  been  forged ;  or  her  hand- 
writing to  the  said  acceptance  of  the  said 
bill,  if  genuine,  has  been  obtained  by 
fraud,  in  total  ignorance  on  her  part,  of 
the  intended  effect  of  the  signature.  Any 
person  who  will  give  positive  information 
to  me  of  the  party  in  possession  of  the 
said  instrument,  shall  be  handsomely  re- 
warded.    Thomas  Binns." 

After  a  verdict  for  the  defendant,  the 
court  held,  that,  at  all  events,  the  action 
could  not  be  supported  without  an  innu- 
endo, in  stating  the  alleged  libel,  applying 
the  charge  to  the  plaintiff. 

The  court  also  intimated  a  strong  opinion 
that,  even  with  an  innuendo,  the  action 
could  not  have  been  supported,  as  the  al- 
leged libel  merely  stated  that  a  bill  had 
been  drawn,  but  threw  no  imputation  on 
the  drawer. 

(i)  Supra,  vol.  I.  p.  393.  And  see  i?- 
v.  Alderton,  Sayer,  280.  R.  v.  Burdett, 
4  B.  and  A.  314.  R.  v.  Home,  Cowp 
682.  Stockley  v.  Clement,  4  Bing.  162  , 
supra.  Goldstein  v.  Foss,  6  B.  and  C< 
152,  and  supra,  305. 

(ft)  8  Mod.  328,  and  see  vol.  I.  p.  358. 


INDICTMENT.  30T 

ed  to  the  prosecutor  only,  though  its  tendency  be  to  vilify  and 
degrade  him  in  his  professional  character,  it  should  be  alleged 
to  have  been  published  with  intent  to  provoke  a  breach  of  the 
peace  (/).  So  where  the  indictment  is  founded  on  a  libel  written 
to  degrade  the  memory  of  one  deceased,  it  should  be  alleged  to 
have  been  published  with  a  design  to  bring  contempt  on  the  family 
of  the  deceased,  and  to  excite  his  relations  to  a  breach  of  the 
peace  (m). 

The  most  usual  plea  in  an  indictment  or  information,  is  the  gene- 
ral one  of  not  gui/ty,  by  which  the  defendant  puts  himself  generally 
upon  the  country  for  his  deliverance,  and  is  entitled  to  take  ad- 
vantage of  every  defect  in  the  evidence  for  the  prosecution  ;  or  to 
rebut  that  evidence  by  counter  proof,  tending  to  convince  the  jury, 
either  that  the  act  imputed  was  not  committed  ;  or,  admitting  the 
publication,  to  show  from  the  contest  (»),  or  other  circumstances, 
either  that  the  matter  published  was  not  criminal  in  its  nature  ;  or, 
if  criminal,  that  it  was  published  inadvertently  (o),  and  without 
"any  guilty  knowledge  (yy)  ;  or  that  it  was  published  un- 
der circumstances  which  the  law  recognizes  as  constitut-  [  *308  ] 
ing  either  an  absolute  justification  or  excuse,  independ- 
ently of  the  question  of  intention,  or  a  qualified  justification  de- 
pendent on  the  actual  intention  and  motive  of  the  defendant  (?). 

(1)  R.  v.  Wegener,  2  Stirkie,  C.  245.  the  defendant  could  have  shown  that  he 

(m.)   R.  v.  Topham,  4  T.  R.  126.  bad  published  the  paper  in  question  with- 

(n)  R.  v.  Lambert  and  Perry,  2  Camp,  out  knowing  its  contents,  as  that  he  could 

C.  398.  not  read,  and  was  not  informed  of  its  ten- 
Co)  R.  v.  Lord  Abingdon,  1  Esp.  22G.  dency  till  afterwards,  that  argument  might 
ip)  In  the  case  of  The  King  v.  Holt,  6  have  been  pressed  upon  the  jury. 

T.  R.  444,  Lord  Kenyon,  0.  J.  observed,  if  (3)  Supra,  210. 


49' 


CHAPTER  XV. 


Evidence. 


[  *309  ]  *With   respect  to  the  nature  of  the  evidence  to  be 

adduced  in  support  of  a  criminal  charge,  little  need  be 
added  to  the  analogous  proofs  already  mentioned  as  applicable  to 
civil  proceedings ;  the  materials  of  evidence,  and  the  rules  which 
govern  their  application  are  for  the  most  part  common  to  both. 

Such  evidence  in  the  criminal  proceeding  relates  to  the  introduc- 
tory averments,  and  the  act  of  publication  by  the  defendant  of  the 
noxious  matter  charged  (a),  in  the  sense  imputed  by  the  averments, 
and  with  the  intention  alleged.  Whether  the  introductory  aver- 
ments be  proved,  is  usually  matter  of  fact  for  the  determination  of 
the  jury,  subject  of  course  to    any  question  of  variance  from  the 

record. 
[  *310  ]  *A  Gazette  is  evidence  to  prove  an  averment  that 
certain  addresses  have  been  presented  to  the  King  (&). 
So  the  King's  Proclamation  for  the  discovery  of  certain  offenders, 
reciting  that  outrages  have  been  committed  in  certain  districts,  is 
evidence  to  satisfy  an  introductory  averment  in  an  information  for  a 
libel,  that  such  outrages  had  been  committed  (6). 

An  allegation  that  the  defendant  was  duly  elected  treasurer  of  a 
particular  parish,  is  proved  by  an  entry  in  the  vestry-book,  stating, 
that  he  was  elected  to  that  office  at  a  vestry  held  after  notice  (c). 
In  criminal  as  welLas  civil  proceedings  in  case  of  libel,  it  is  unne- 

(a)  The  court,  under  the  late  statute,  9  (£)  R.  v.  Holt,  5  T.  R.  436. 

G  IV  c  15,  has  a  discretionary  power  to  (b)  R.  v.  Sutton,  4  M,  and  S.  646.J 

amend  variances  between  the  record  and  (0  R.  v.  Martin,  2  Camp.  100.    Cor. 

any  matter  in  writing  or  print  produced  i  n  Macdonald ,  C.  B. 
evidence. 


EVIDENCE— PUBLICATION.  310 

cessary  to  give  further  proof  of  facts  which  the  alleged  libel  assumes 
to  be  truth  (</). 

'Where  the  Indictment  alleges  that  the  prosecutor,  at  the  time  of 
the  libel,  filled  a  particular  situation,  it  is  sufficient  to 
prove  a  previous  appointment,  without  showing  its  con-  [  *311  ] 
tinuances;  for  the  commencement  being  shown,  the  con- 
tinuance will  be  presumed  («?).  But  in  criminal  as  well  as  civil 
cases,  unless  strict  proof  of  appointment  be  rendered  necessary  by 
the  particular  mode  of  averment,  proof  that  a  party  acts  in  a  pub- 
lic office  is  sufficient  prima  facie  evidence  that  he  really  held  it  (/). 
In  criminal  cases,  it  is  usually  sufficient  to  prove  a  publication  to 
the  party  defamed  (#•).  But  it  is  necessary  to  prove  a  publication 
in  the  particular  county  where  the  offence  is  charged  to  have  been 
committed,  in  all  cases  where  the  fact  of  publication  is  of  the  essence 
of  the  offence. 

The  principal  decisions  on  this  subject  have  already  been  adverted 
to.  The  question  of  publication  is  ordinarily  one  of  mere  fact,  to 
be  decided  by  the  jury :  but  this,  like  all  other  legal 
and  technical  terms  involves  law  as  well  as  Tact  ;%and  it  [  *312  ] 
is  a  question  for  the  court,  in  doubtful  cases,  whether 
the  facts,  when  proved,  would  constitute  a  publication  in  point  of  law. 
In  the  case  of  the  King- v.  Sir  F.  Burdett  (A),  the  first  question 
was  whether  there  was  sufficient  presumptive  evidence  to  warrant  a 
jury  in  finding  that  there  had  been  an  open  publication  in  the  county 
of  Leicester,  and  of  this  opinion  were  Abbott,  C.  J.  and  Best,  J. 
Secondly,  whether  what  was  termed  a  close  publication,  by  the  de- 
livery of  the  sealed  letter  in  the  county  of  Leicester,  to  be  conveyed 
into  a  different  county  by  the  post,  amounted  to  a  publication  in  law 

{d)  Supra,  p.  11,  and  see   the  observa-  Bas;nall   v.    Underwood,    11  Price,   621, 

tions  of  Bayley,  J.  in  JR.  v.  Sutton,  4  M.  &  ami  see  Berryrnau  v.  Wise,  4  T.   R.  366, 

8.  518.     Where  the   plaintiff  alleged  that  supra,  p.  2. 

he  held  a  certain  office  and    place  of  trust         (e)  R-  v.  Budd,  5  Esp.   C.   230,  which 

and  confidence,  to  wit,  the  office  of  overseer  was  an  indictment  for  a  libel  on  Lord  St. 

of  a  certain   common   field,  &c.    and   the  Vincent,  in  his  character  of  first  Lord  of 

terms  of  the  alleged  libel  treated  the  plain-  the  Admiralty.     The  prosecutor  produced 

tiff  as  holding  an  office  of  public  trust,  and  his  patent, 
charged  him   with    not  having    given    a         (/ )  Supra. 

proper  account  of  the  public  property;  it         (y)  Proof  of  such   a  publication  is  not 

was  held  to  be  evidence  of  the  averment,  sufficient,  where  the  only  intent  averred  is 

although    the    plaiutiff's     own    witnesses  the  intent  to  injure   the  prosecutor  in  his 

showed  that    the  plaintiff 's  office  was  not  profession  as  an  attorney.  R.  v.  Wegener, 

one  of  trust  and  confidence,  and   that  ne  1  Starkie's  C.  543,  infra, 
was  not  trusted  with  the  receipt  of  money.        (/»)  4  B.  and  A.  95. 


312  CRIMINAL  DIVISION. 

in  the  county  of  Leicester,  and  of  this  opinion  were  Holroyd  and 
Best,  Judges.  Thirdly,  whether  proof  of  such  close  delivery  and 
subsequent  publication,  in  such  different  county,  constituted  an  of- 
fence of  which  the  jury  could  inquire  on  an  indictment  in  the  county 
of  Leicester,  and  of  this  opinion  were  Abbott,  C.  J.  and  Holroyd,  J. 

Holroyd,  J.  also  expressed  an  opinion,  that  the  composing  and 
writing,  with  the  intention  afterwards  to  publish,  amounted  to  a 
misdemeanor,  and  that  the  jury  might  inquire  as  to  the  publishing 
in  another  county,  in  order  to  prove  the  defendant's  intention  in 

composing  and  writing  in  Leicestershire. 
[  *313  ]       *Where  a  libel  is  found  in  a  man's  own  custody,  but 
exposed  on  a  shelf  in  a  bookseller's  shop,  the  owner  is,  it 
is  said,  guilty  of  a  publication  (i). 

Proof  that  the  defendant  procured  a  number  of  placards  to  be 
printed,  from  a  manuscript,  part  of  which,  when  printed,  he  took 
away,  is  sufficient  to  warrant  the  reading  in  evidence  one  of  those 
copies  left  with  the  printer  (A;). 

Where  the  defendant  had  acknowledged  himself  to  be  the  author 
of  the  libel  produced  in  evidence,  errors  of  the  press,  and  some 
small  variations  excepted,  his  counsel  objected  that  the  confession 
wa.s  not  absolute,  and  that,  therefore,  the  libel  could  not  be  read  ; 
but  Pratt,  C.  J.  allowed  it  to  be  read,  saying,  that  he  would  put  it 
on  the  defendant  to  prove  material  variances  (T). 

The  provisions  of  the  st.  38  G-.  III.  which  facilitate  the  proof  of 
publication  in  proceedings  against  the  editors  of  newspapers,  have 

already  been  adverted  to  (m). 
[  *314   ]        By  the  st.  60  G.  III.  and  1  G.  IV.  c.  9,  similar  *pro- 
visions  are  made  in  respect  of  certain  pamphlets  contain- 
ing public  news  [1] . 
[  *320  ]       *Where  the  publication  of  the  libel  has  been  proved, 
either  the  prosecutor  or  the  defendant  (o)  is  entitled  to 
have  extracts  read  from  different  parts  of  the  same  paper  or  book 
relating  to  the  same  subject. 

(i)  12  Vin.  Ab.  229.    4  Read.  St.  Law.        (?)  R.  v.  Hall,  Str.  416. 

455.  (m)  SuPra  43« 

(fc)  R.  v.  Watson,  2  Starkie's  C.  129.  (o)  R.  v.  Lambert,  2  Camp.  398. 


[1]  In  the  London  edition  are  set  forth  verbatim  twelve  out  of  nineteen  sections  of  the 
act;  but  as  it  can  be  of  no  possible  use  here  to  reprint  them,  they  are  omitted.  These 
sections  occupy  nearly  six  fall  pages  of  the  London  edition,  -viz  :  pages  314,  315,  316, 
317,318,319. 


EVIDENCE— INT  BNTTON.  320 

The  sale  of  every  distinct  copy  of  a  libel  is  a  separate  offence  (p)  ; 
and,  therefore,  a  conviction  or  acquittal  on  an  indictment  for  pub- 
lishing one  copy  would  be  no  bar  to  an  indictment  for  publishing 
another  copy. 

It  is  almost   superfluous  to  observe,  in   this  stage  of  the   present 
work,  that,  in  criminal  as  well  as  civil  proceedings,  it  is  for  the  jury, 
in  all  cases  of  doubtful  application,  to  judge  of  the  defendant's  in- 
tention to  apply  the  words  or  libel  to  the  particular  subject  matter, 
according  to  the  averments  in  the  indictment  (</').     Thus 
where  the  'intention  to  apply  defamatory  remarks  to  the   [  *.°>21   ] 
prosecutor,  is  rendered  doubtful  and  ambiguous,  by  the 
defendant  having  left  blanks  for  names,  or  from  his  having  given 
merely  the  initials,  or  introduced  fictitious  names,  it  is  always  a 
question  for  the  opinion  and  judgment  of  the  jury,  whether  the  pro- 
secutor was  the  party  really  aimed  at  (r).     For  this  purpose  the 
judgment  and  opinions  of  witnesses,  who,  from  their  knowledge  of  the 
parties  and  the  circumstances,  are  liable  to  form  a  conclusion  as  to 
the  defendant's  intention  and  application  of  the  libel,  is  evidence 
for  the  information  of  the  jury  (s). 

*Any  further  observations  on  the  subject  of  evidence  |  '322  ] 
to  prove  general  malice  seem  to  be  unnecessary.  The 
rule  of  law  on  this  subject  in  criminal,  is  analogous  to  that  in  civil 
proceedings.  If  the  publication,  considered  either  abstractedly  or 
in  connection  with  the  extrinsic  facts  alleged,  be  calumnious,  injuri- 
ous, and  criminal,  cither  because  it  conveys  some  offensive  and  nox- 
ious imputation,  or  exposes  an  individual  to  the  hatred  and  contempt, 
or  even  to  the  ridicule  of  others,  and  no  circumstances  appear  which, 
in  legal  consideration,  supply  either  an  absolute  or  even  qualified 

(p)  R.  v.  Carlisle,  1  Chitty  451.  to  charge  the  plaintiff  with  frau'l  on  the 

(q)   Supra,   vol.    I.  — .     In  the  case  of  people  of  Chili  than  on  the  people  of  F.ng- 

Yrissari  v.  Clement,  8  Bing.  482,  the   al-  land;   and  on   this   ground,  after  a  verdict 

leged  libel  contained  (inter  alia)  the  fol-  fcr  the  plaintiff  with   6400  damages,  the 

lowing    passage. — "He  lost   no    time    in  court  granted  a  new  trial, 
transferring  himself  with  Cl!00,000  of  John         (r)    Sec  the  observations  and  opinions  Of 

Bull's   money  to  Paris,  where  he  now  out-  the  judges,  supra  vol.  I,  p.  54,  et  sequent. 
tops   princes  in  his  style  of  living,   (mean-         (•)  Supra 62.     Lord  Fllenborough  held, 

ing  and  intending  thereby,  that  the  said  that  the  declarations  of  spectators,  while 

plaintiff  had  fraudulently  obtained  £200,-  they  looked  at  a  libellous  picture,  publicly 

000  sterling  of  the  money  of  the  English  exhibited  in  an  exhibition  room,  was  evi- 

snhjeots  of  our  sovereign   lord   the   King,  donee  to  show  that  the  figures    portrayed 

and   had    fled    from    the  country  with   the  were  meant  to  represent  the  parties  alleged 

Same.)     It     appeared,    from    the   context,  to  have  been  libelled.     Du  Bost  v.  Beres- 

*hat  the  intention  of  the  writer  was  rather  ford,  2  Camp.  G.  512. 


322 


CRIMINAL  DIVISION. 


defence,  malice,  if  material,  is  yet  but  a  mere  inference  of  law,  which 
the  jury  are  bound  to  find,  according  to  the  direction  of 
[  *323  ]  of  the  court  (7)-  *If?  on  the  other  hand,  there  be  cir- 
cumstances which  supply  a  justification  or  excuse,  provid- 
ed the  defendant  acted  honestly,  with  a  view  to  the  occasion,  and 
was  not  actuated  by  express  collateral  malice,  then  it  lies  on  the 
prosecutor  to  prove  such  express  malice,  or  malice  in  fact. 

Where  a  -publication,  with  a  specific  intention  is  alleged,  such 
intention  must  be  proved  accordingly. 

*Where  a  letter  is  alleged  to  have  been  written  and  sent  with 
intent  to  provoke  the  party  to  whom  it  has  been  sent  to 
[  *324  ]  commit  a  breach  of  the  peace,  such  intent  must  be  proved 
as  laid.  So  where  the  publication  is  averred  to  have 
been  made  with  intent  to  defame  particular  magistrates,  or  to  bring 
the  administration  of  justice  into  contempt.  But  allegations  of  in- 
tent are  usually  divisible,  and  where  two  distinct  intents  are  charged, 


(0   Supra  240,  and  see  vol.  I.  p.  209. 
292.     In   the  case  of    Levi   v.   Milne,  4 
Bingh.  195,  the  defendant  published  some 
doggerel  verses  on  the  plaintiff,  (a  bailiff,) 
describing  an  inefficacious  attempt  on  his 
part  to  arrest  a  party  of  whom  he  was  in 
search.     The  publication  was  headed  by  a 
wood-cut,  styling    the    plaintiff    Levy  the 
bum.     The    jury   inquired,    whether    one 
shilling  would  carry  costs,  and  being  an- 
swered in  the  affirmative,  found  a  verdict 
for  the    defendant.     The  court  under  the 
circumstances,  granted  a  new  trial,  on  the 
ground  that  the  jury  had  taken  upon  them- 
selves to  judge  of  the  law  of  the  case;  and 
Best,  C.  J.  said,  it  had  been  urged  that, 
in  cases  of  libel,  the  juries  are  judges  of 
the  law  as  well  as  of  fact;  but  I  beg  to  say 
that  juries  are  not  judges  of  the  law,  or> 
at  any  rate,  not  in  civil  actions.     The  au- 
thority on  which  that  position  is  grounded, 
is  the  32  G.  III.  c.  60,  which  was  the  fa- 
mous bill  brought  in  by  Mr.  Fox,  or,  more 
properly,  by  Lord   Erskine;    but  whoever 
reads  that  act,  will  see  that  it  does  not  ap- 
ply to  civil  actions;  it  applies  only  to  crim_ 
inal  cases.     There  is  nothing  in  it  that  in 
any  way  touches  civil  actions,  and  the  jury, 
with  respect  to  them,  stand    in  the  same 


situation  as  they  have  ever  done.     I  mean* 
however,  to  protest  against  juries,  even  in 
criminal    cases,   becoming    judges   of  the 
law;  the  act  only  says,  that  they  may  give 
a  general  verdict."     And  see  4  B.  and  A# 
131.     In  the  case  of  Blackburn  v.  Black- 
burn, 4  Bing.  395,  the  learned  judge  left 
it  to  the   jury  to  say,  whether  supposing 
the  alleged  libel  was  a  privileged  communi- 
cation,  they  found   express   malice.    The 
jury  negatived  express  malice,  and  found  a 
verdict  for  the  plaintiff,  with  £50  damages. 
The  court  were  of  opinion,  on  a  motion  for 
a  new  trial,  that  the   communication  was 
not  a  privileged  one,  and  that  the  plaintiff 
was  entitled  to   retain   his   verdict.    The 
plaintiff  having  the  defendant's  bond,  ad- 
vertised it  for  sale;  the  defendant  published 
a  statement   of   the   circumstances   under 
which  the  bond  had  been  given,  with  this 
conclusion: — "His  object  either  is  to  ex- 
tract money  from  the  pocket  of  an  unwary 
purchaser,  or,  what  is  more  likely,  to  ex- 
tort money  from  me."     And  it  was  held, 
that  the   publication  was  clearly  libellous, 
and  that  no   proof  of  express  malice  was 
necessary.     Robinson     v.   M' Dougall,  4 
Bing.  670. 


EVIDENCE— INTENTION.  324 

either  of  which  would  have  supported  the  indictment,  it  is  sufficient 
to  prove  either  of  them  (u). 

Where  the  indictment  alleged  a  publication  of  a  libel  with  intent 
to  disparage  and  injure  the  prosecutor  in  his  profession  of  an  attor- 
ney, it  was  held,  that  the  mere  proof  of  a  publication  to  the  prose- 
cutor only  did  not  support  the  indictment,  and  that  the  publication 
ought  to  have  been  averred  to  have  been  made  with  intent  to  pro- 
voke and  excite  the  prosecutor  to  a  breach  of  the  peace  ■ 

Where  the  name  of  the  party  calumniated  is  left  in  blank,  general 
evidence  by  those  who  know  him  is  sufficient  for  the  pur; 
pose  of  proving  that  he  was  the  person  meant  :  but  'such  |  "■'•-'>  ] 
evidence  is  insufficient,  if  it  turn  out,  upon  inquiry,  that 
the  witness  derives  his  conclusion,  merely  from  the  terms  of  ano- 
ther libel,  with  the  publication  of  which  the  defendant  had  no  con- 
cern (if). 

In  general,  it  is  competent  to  the  defendant  to  adduce  any  evi- 
dence in  contradiction  of  that  which  has  been  adduced  on  the  part 
of  the  prosecution.  He  may  show  that  his  delivery  of  the  libel  was 
not  a  wilful  or  blamable  one,  and  that  he  acted  under  an  honest 
ignorance  of  the  contents  or  quality  of  the  libel,  without  knowing  or 
having  reason  to  apprehend  that  the  act  was  illegal.  And  though, 
as  has  been  already  seen,  a  strong  presumption  of  criminal  know- 
ledge or  culpable  connivance  is  usually  and  necessarily  entertained 
against  booksellers,  where  libels  are  sold  by  their  agents,  yet,  as  a 
man  cannot  offend  criminally,  unless  some  degree  of  blame  or  negli- 
gence be  imputable  to  him,  it  seems  to  be  clear  that  this  presump- 
tion is  not  conclusive  in  its  nature,  but  may  be  repelled  by  proof  of 
fraud  or  surprise,  or  such  other  circumstances  as  are  calculated  to 
overcome  that  reasonable  degree  of  vigilance  and  supervision  which 
a  cautious  man  ought  to  exercise  in  so  responsible  a  vocation. 

He  may,  also,  under  the  plea  of  not  guilty,  give  in  evidence  any 
collateral  facts  which  raise  either  an  absolute  justifica- 
tion, independently  of  the  question  of  actual  intention,  |  '326  ] 
or  a  qualified  justification  or  excuse  dependent  on  the 
question  of  good  or  evil  intention  ;  and  also,  in  the  latter  case,  may 
adduce  such  evidence  as  tends  to  show  that  he  acted  bonajide  for  a 
legal  object,  and  not  for  any  evil  or  vexatious  purpose. 

It  is  not  competent  to  the  defendant  to  show  that  others  have  pub- 

(u)  R.  v.  Evans,  supra  vol.  I,  p.  439.         (x)  R.  v.  Wegener,  1   Starkic's  C.  543. 
See  also  vol.  I,  p.  408.  Cor.  Abbott,  C.  J. 

(y)   Bourke  v.  Warren,  2  C.  &  P.  807. 


326  CRIMINAL  DIVISION. 

lished  similar  papers,  without  having  been  prosecuted  (V),  for  such 
persons  have  no  opportunity  given  to  defend  themselves,  and  one 
defendant  cannot  excuse  himself  by  showing  that  others  have  also 
been  criminal. 

Matters  available  in  mitigation  of  punishment  are  usually  reserved 
till  after  the  trial,  and  are  exhibited  to  the  court  upon  affidavits. 
In  some  instances,  however,  such  evidence  is  received  at  the  trial. 
Thus,  evidence  has  been  received  to  show  that  the  defendant, 
when  proceedings  were  instituted,  stopped  the  sale  of  the  obnoxious 
work  (a). 

(z)  R.  v.  Holt,  5  T.  R.  436.  (a)  R.  v.  Hone,  Manning's  Iud.  198. 


CHAPTER  XVI  . 


Of  the  Trial  and  Verdict. 

*The  verdict  in  this,  as  in  other  criminal  proceedings,    [  '327  ] 
is  cither  a  general  verdict  of  condemnation  or  acquittal ; 
or  a  special  verdict,  by  which  the  jury  find  the  facts,  and  refer  the 
questions  of  law  to  the  court. 

The  offence  consists  of  the  act  of  publishing  the  matter  Bet  forth 
on  the  record,  in  the  sense  attributed  by  the  innuendos,  with  the 
intention  alleged,  maliciously  without  any  legal  justification  or  ex- 
cuse. The  fact  of  publishing  the  illegal  matter,  and  of  its  being 
published  in  the  particular  sense  alleged,  are  ordinarily  questions  of 
fact  for  the  jury,  subject,  of  course,  to  the  opinion  and  judgment  of 
the  court,  whether  the  facts  proposed  to  be  proved  would  be,  when 
proved,  sufficient  in  point  of  law,  to  constitute  a  publication  and  to 
support  the  innuendos. 

Whether  the  defendant  published  the  alleged  libel  wilfully  and 
designedly,  and  whether  he  did  so  with  the  particular  in- 
tention specified  in  the  "information  or  indictment,  are  [  *328  ] 
also  questions  of  fact  for  the  determination  of  the  jury. 
Till  these  facts  are  determined  by  the  jury,  the  court  cannot  other- 
wise then  hypothetically  form  any  judgment  on  the  question  of  guilt 
or  innocence.  On  the  other  hand,  the  quality  of  the  alleged  libel, 
as  it  stands  on  the  record,  either  simply  or  as  explained  by  aver- 
ments and  innuendos,  is  purely  a  question  of  law  for  the  considers. 
tion  of  the  court. 

This  position  required  little  support  from  observation  or  comment; 
it  rests  not  only  on  precedent,  bul  legal  analogies,  and  no  obvious 
grounds  of  reason  and  convenience.  Upon  a  demurrer,  motion  in 
arrest  of  judgment,  or  writ  of  error,  this  question  is  necessarily  one 
of  mere  law,  and  the  court  is  called  on  to  pronounce,  whether,  as- 
suming the  alleged  libel  to  have  been  published  in  the  sense  pointed 
out  by  the  averments,  and  with  the   intention  averred,  it  amounts. 

Vol.  II.  50 


328  CRIMINAL  DIVISION. 

in  point  of  law,  to  a  libel.     The  court,  in  such  cases,  must  neces- 
sarily decide  the  question  of  libel,  or  no  libel,  as  a  question  of  law  ; 
it  cannot,  therefore,  be  a  question  of  fact ;  it  is  obvious  that  the 
opinion  and  judgment  of  the  jury  on  the  subject  must  be  immaterial, 
when  it  is  considered  that  the  defendant  may  wholly  withdraw  the 
question  from  their  consideration  by  a  demurrer,  or  that, 
*329  ]  even  after  their  decision,  the  question  is  still  open  *on  the 
record,  and  must  be  decided  by  the  court,  independently 
of  the  opinion  of  the  jury,  before  they  can  pronounce  any  penal 
sentence. 

The  question  remains,  whether  the  publication  of  the  libel  alleged 
was  a  malicious  or  wrongful  publication ;  for,  though  the  fact  of 
publishing,  and  the  illegal  and  noxious  quality  of  the  thing  publish- 
ed be  beyond  dispute,  yet  the  act  of  publication  may  be  perfectly 
innocent ;  so  far  from  being  illegal,  it  may  have  been  an  act  meri- 
toriously done,  for  the  very  purposes  of  justice.  And,  therefore,  as 
not  merely  a  publication,  but  a  malicious  or  wrongful  publication 
must  be  averred,  so  must  such  a  malicious  and  wrongful  publication 
be  found  by  the  jury,  either  by  means  of  a  general  verdict  of  guilty, 
which  comprehends  the  whole  of  the  charge,  or  by  a  special  finding 
of  a  malicious  and  wrongful  publication,  or  at  least,  by  negativing 
the  existence  of  any  legal  justification  or  excuse. 

Where  the  circumstances  and  occasion  of  publishing  are  such  as 
amount  to  a  legal  justification  or  excuse,  independently  of  the 
question  of  intention,  the  existence  of  those  facts  is,  of  course,  for 
the  consideration  and  decision  of  the  jury  ;  but  whether,  when  as- 
certained, they  amount  to  a  legal  justification  or  excuse  is  obviously 
a  mere  question  of  law  for  the  opinion  and  judgment  of 
[  *330  ]  the  court.  It  is,  for  instance,  a  question  of  mere  *fact, 
whether  the  alleged  libel  was  published  by  way  of  peti- 
tion to  parliament,  and  whether  it  was  made  according  to  the  course 
and  order  of  such  like  proceedings  in  parliament,  but  whether  the 
occasion  justifies  a  publication  so  made,  is  a  question  of  law. 

So,  again,  it  is  a  question  of  law,  whether  the  occasion  and  cir- 
cumstances of  the  publication  furnish  a  qualified  justification  or  ex- 
cuse dependent  on  the  actual  intention  of  the  defendant ;  but  when 
that  is  the  case,  and  the  guilt  or  innocence  of  the  defendant  turns 
upon  the  question,  whether  he  acted  with  an  evil  and  mischievous 
intention,  or  bona  fide,  and  with  a  view  to  some  legal  object,  the 
question  of  malicious  intention  is  a  conclusion  of  fact  to  be  drawn 
by  a  jury,  on  a  consideration  of  the  terms  of  the  alleged  libel,  and 


TRIAL  AND  VERDICT.  330 

all  the  circumstances  of  the  case.  If  the  matter  charged  to  be  li- 
bellous were  contained  in  a  letter,  sent  by  the  defendant  to  the 
prosecutor,  and  the  defence  were,  that  the  charges  it  contained  were 
not  with  the  intent  to  provoke  or  exasperate,  but  were  written  for 
the  purpose  of  honest  remonstrance  and  admonition,  it  would  be  for 
the  jury  to  decide,  under  all  the  circumstances,  considering  the 
situation  of  the  parties,  the  conduct  of  the  defendant,  and  the 
language  used,  whether  the  act  in  reality  originated  in  a  sincere  and 
honest  intention,  or  in  an  evil  and  sinister  motive  which  warranted 
a  conviction. 

•Again,  where  there  is  no  evidence  of  such  facts  and  [  *331  ] 
circumstances  as  would,  if  found  by  the  jury,  raise  cither 
an  absolute  justification,  independently  of  the  question  of  intention, 
or  a  qualified  justification  or  excuse,  dependent  on  actual  intention, 
then  if  the  question  of  malice  is  to  be  regarded  as  a  question  of  fact 
for  the  jury,  it  is  undoubtedly  one  which  they  ought,  in  that  predic- 
ament, to  draw  from  the  commission  of  a  noxious  act.  It  is  a  plain 
and  obvious  principle,  in  morals  as  well  as  law,  that  every  one  must 
be  taken  to  contemplate  and  intend  the  natural  and  immediate  con- 
sequences of  the  act  which  he  does,  and  the  means  whicli  he  uses. 
The  question  of  malice  may,  it  seems,  in  every  such  case,  be  mere 
properly  regarded  as  a  mere  legal  inference,  arising  from  the  doing 
of  an  unlawful  act,  without  legal  excuse,  than  as  a  question  of  fact; 
malice  in  such  case,  meaning  nothing  more  than  the  entire  absence 
of  legal  excuse.  Be  this  as  it  may,  in  this  case,  as  well  as  others, 
it  is  clear,  for  the  reasons  already  adverted  to,  that  in  order  to  war- 
rant a  legal  judgment  of  condemnation,  the  jury  must,  by  their  ver- 
dict, find  that  the  act  was  done  maliciously  or  wrongfully,  or  in  such 
othar  manner  as  is  sufficient  to  negative  the  question  of  any  legal  jus 
tification  or  excuse  ;  till  then,  the  presumption  of  innocence  is  not 
excluded,  still  less  is  the  criminality  of  the  act  established. 

*Thc  common  law  doctrine,  as  to  trials  for  libel,  on 
these  points  seems  to  remain  still  the  same  notwithstand-  [  *332  ] 
ing  the  statute  32  G.  III.  c.  60,  by  whicli  such  trials 
on  informations  and  indictments  are  regulated  ;  the  effect  of  this 
statute  seems  to  be  simply  to  remove  some  doubts  whicli  hud  exist- 
ed, and  some  peculiarities  whicli  had  prevailed  in  practice  with  re- 
spect to  trials  for  libel,  and  restore  the  ordinary  course  and  order 
of  the  common  law, 

The  practice  which,  after  much  legal  discussion,  at  last  occasioned 
the  passing  of  the  Libel  Bill,  was  this, — the  court,  on  criminal 


332  CRIMINAL  DIVISION. 

trials  for  libel,  and  where  there  were  no  facts  or  circumstances  which 
raised  any  justification  or  excuse  in  point  of  law,  directed  the  jury 
to  find  the  defendant  guilty,  if  they  were  satisfied  as  to  the  fact  of 
publication  and  the  truth  of  the  innuendos.  To  this  it  was  object- 
ed, that  in  the  case  of  libel,  as  well  as  in  all  others,  it  was  for  the 
court  to  pronounce  an  opinion  on  the  legal  quality  of  the  act,  for  the 
guidance  of  the  jury,  and  that  the  fact  of  criminal  intention  was  pe- 
culiarly for  tb.e  jury,'  who  were  to  give  their  verdict  on  the  whole  of 
the  case.  A  minute  attention  to  the  history  of  this  question,  would 
probably  show  that,  if  the  jury  in  such  cases  did  not  violate  their 
duty,  in  taking  on  themselves  to  decide  matters  of  law,  this  appar- 
ent deviation  from  the  ordinary  practice  was  wholly  im- 
[  *333  ]  material, *as  to  the  final  result;  that,  on  the  one  hand, 
the  course  adopted  by  the  courts  was  occasioned  by  their 
anxiety  to  prevent  juries  from  exceeding  their  authority,  in  cases 
where  strong  prejudices  were  likely  to  operate ;  and  that,  on  the 
other  hand  defendants  probably  expected  to  derive  benefit  from  the 
operation  of  such  causes,  where'  it  was  possible  that  juries  might  be 
willing  to  warp  the  law  according  to  their  feelings  and  prejudices, 
and  shelter  themselves  under  a  general  verdict.  In  ordinary  prac- 
tice, it  is,  no  doubt,  for  the  court  to  direct  the  jury,  as  to  the  crim- 
inal quality  of  the  acts  which  the  evidence  tends  to  prove.  Upon  a 
charge  of  forgery,  where  evidence  is  given  that  the  prisoner  altered 
a  genuine  instrument,  the  court  informs  the  jury  whether  that  alter- 
ation amounts,  under  the  circumstances,  if  the  facts  be  proved,  to  the 
offence  of  forgery :  in  larceny,  whether  the  particular  act  of  which 
evidence  is  given,  amounts  to  an  asportation  sufficient  to  warrant  a 
charge  of  felony  ;  and  this  is  obviously  necessary  in  all  cases  where 
the  charge  is  stated,  by  the  aid  of  any  general  terms,  on  the  face  of 
the  record,  and  the  question  arises,  whether  the  particular  facts 
proved  are  sufficient,  in  point  of  law,  to  support  that  charge  ;  in  all 
such  cases,  the  jury  would  not  be  warranted  in  pronouncing  a  gene- 
ral verdict  of  guilty,  except  upon  information,  in  point  of 
[  *334  ]  law,  that  the  facts  were  sufficient  in  point  *of  law,  to  sat- 
isfy the  allegation  on  the  record ;  and  it  is  no  doubt  the 
duty  of  the  court  to  supply  this  information.  The  case  of  libel  is 
peculiar,  for  there  the  libel  itself  is  set  out  on  the  record,  and  though 
the  court,  at  the  trial,  should  not  give  an  opinion  on  the  criminal 
quality  of  libel,  yet  if  the  matter  published  were  not  in  law  a  libel, 
no  penal  judgment  could  afterwards  be  pronounced.  Assuming, 
therefore,  that  the  alleged  libel  was,  in  point  of  law,  no  libel,  the  only 


INCIDENTS  TO  THE  TRIAL.  334 

difference  would  be,  that,  according  to  the  ordinary  practice,  the  de- 
fendant would  he  entitled  to  his  acquittal  upon  the  trial  by  the  jury, 
whilst  according  to  the  former  practice,  in  case  of  libel,  the  defend- 
ant might  he  convicted  at  the  trial,  but  would  he  entitled  to  arrest 
of  judgment,  by  reason  of  the  defect  on  the  record. 

With  respect  to  the  latter  objection,  viz :  that  the  question  of  in- 
tention ought  to  be  left  to  the  jury,  as  a  question  of  fact,  it  is  to  be 
observed,  that  the  practice  of  advising  the  jury  to  find  the  defendant 
guilty,  on  proof  of  the  fact  of  publication  and  of  the  proof  of  the 
innuendos,  was  confined  to  those  cases  where  no  legal  justification 
or  excuse,  either  of  an  absolute  or  qualified  nature  as  dependent  on 
actual  malice,  arose  out  of  the  circumstances  ;  and,  consequently, 
where  the  only  question  was,  whether  malice  was  not  a  mere  legal 
inference  from  the  very  act  of  publishing  illegal  matter ;  in  such 
cases,  therefore,  that  is,  where  the  matter  published  was 
'libellous,  and  there  was  a  total  absence  of  any  legal  jus-  [  *335  ] 
tification  or  excuse,  there  was  no  real  question  of  inten- 
tion to  be  left  to  the  jury. 

Having  made  these  remarks,  for  the  purpose  of  showing  to  what 
extent  the  practice  which  occasioned  the  Libel  Bill  differed  from 
the  ordinary  course,  and  that  the  deviation,  though  anomalous  and 
unnecessary,  and  to  that  extent  at  least  objectionable,  was  more 
apparent  than  real,  it  will  be  proper  to  advert  to  the  different 
cases  which  have  occurred  in  relation  to  this  question. 

After  the  abolition  of  the  Star  Chamber,  which  in  cases  of  libel 
exercised  an  unbounded  control  over  both  law  and  fact,  the  cogniz- 
ance of  such  offences  reverted  to  the  court  of  King's  Bench,  to  be 
exercised  in  the  constitutional  mode  by  the  intervention  of  a  jury  ; 
and  till  sometime  after  this,  period,  no  doubt  seems  to  have  been 
entertained  of  the  right  of  a  jury  to  give  a  general  verdict  in  the 
case  of  libel,  as  well  as  in  any  other  criminal  proceeding. 

In  the  year  1670  (a),  two  Quakers,  Penn  and  Mead,  indicted  for 
seditiously  preaching  to  a  multitude  tumultuously  assembled  in 
Gracechureh  Street,  were  tried  I 'lore  the  Recorder  of  London, 
who  told  the  jury,  that  they  had  nothing  to  do  but  to  find  whether 
the  defendants  had  preached  or  not;  for  that,  whether 
*thc  matter  or  intention  of  their  preaching  was  seditious,  rj*386  ] 
were  questions  of  law  but  not  of  fact,  which  they  were 
to  keep  to  at  their  peril.     The  jury  first  found  Penn  guilty  of  spcak- 

(o)  Bushcll't  cate,  Vaughan  Rep.  135. 

50* 


336  CRIMINAL  DIVISION. 

ing  to  the  people  in  Graccchurcli  Street.  This  verdict  having  been 
refused  by  the  Recorder,  the  jury  again  retired,  and  afterwards 
brought  in  a  general  verdict  of  acquittal ;  this  the  court  considered 
as  a  contempt,  and  set  a  fine  of  forty  marks  on  each  of  them,  and 
directed  them  to  be  confined  till  the  fine  should  be  paid.  Edward 
Bushel,  one  of  the  jurors,  refused  to  pay  the  fine,  and  being  impri- 
soned in  consequence  of  his  refusal,  sued  out  his  writ  of  habeas  cor- 
pus, which  was  returned,  together  with  the  cause  of  his  commit- 
ment, "  his  acquittal  of  Penn  and  Mead  against  the  law  of  England, 
against  the  evidence,  and  against  the  direction  of  the  court  on  mat- 
ter of  law." 

Lord  Chief  Justice  Vaughan,  on  the  latter  part  of  the  return, 
observed,  "  The  words  that  the  jury  did  acquit,  against  the  direction 
of  the  court  in  matter  of  law,  literally  taken  and  de  piano,  are  in- 
significant and  unintelligible  ;  for  no  issue  can  be  joined  of  matter  in 
law ;  no  jury  can  be  charged  with  matter  in  law  barely  ;  no  evidence 
ever  was  or  can  be  given  to  a  jury  of  what  is  law  or  not ;  nor  no  such 
oath  can  be  given  to  or  taken  by  a  jury  to  try  matter  in  law  ;  nor  no 
attaint  can  lie  for  such  a  false  oath. 

"  Therefore  we  must  take  off  this  veil  and  color  of  words? 
[  *337  ]  *which  make  a  show  of  being  something,  and  in  truth  are 
nothing. 
"  If  the  meaning  of  these  words,  finding  against  the  di- 
rection of  the  court  in  matter  of  law,  be,  that  the  judge  having 
heard  the  evidence  given  in  court,  for  he  knows  no  other,  shall  tell 
the  jury  upon  this  evidence,  the  law  is  for  the  plaintiff  or  for  the 
defendant,  and  you  are  under  the  pain  of  fine  and  imprisonment  to 
find  the  contrary,  then  the  jury  ought  of  duty  so  to  do  ;  every  man 
sees  that  the  jury  is  but  a  troublesome  delay,  great  charge,  and  of 
no  use  in  determining  right  and  wrong ;  and,  therefore,  the  trials  by 
them  may  better  be  abolished  than  continued,  which  were  a  strange 
new  found  conclusion,  after  a  trial  so  celebrated  for  many  hundreds 
of  years. 

"  For  if  the  judge,  from  the  evidence  shall  by  his  own  judgment 
first  resolve  upon  any  trial  what  the  fact  is,  so  knowing  the  fact  shall 
then  resolve  what  the  law  is,  and  order  the  jury  severally  to  find  ac- 
cordingly, what  either  necessary  or  convenient  use  can  be  fancied 
of  juries,  or  to  continue  trials  by  them  at  all  (6)." 

(b)  Bushell's  case,  Vaughan  Rep.  135. 


INCIDENTS  TO  THE  TRIAL.  337 

Upon  the  trial  of  Nathaniel  Thoinsom  (c)  and  'others     [  *'■ 
for  composing  and  publishing  Libellous  remarks  upon  the 
administration  of  justice,  the  chief  justice  (d)  concluded  his  obser- 
vations to  the  jury,  by  Baying — "  Gentlemen,  I  do  Leave  it  to  jrou, 
whether  upon  this  evidence  you  do  not  believe  them  all  to  be  guilty 
oT  thi  of  traducing  the  justice  of  the  nation." 

Jn  the  case  of  the  Seven  (c)  Bishops,  who  were  indicted  for 
having  offered  a  petition  to  the  King,  which  was  alleged  to  be  a  Libel, 
the  judges,  who  seemed  no  ways  inclined  to  favor  the  defendants, 
would  not  accede  to  the  doctrine  of  the  counsel  for  the  crown,  who 
contended  that  the  malic;;  and  sedition,  wherewith  the  prelates  v. 
charged,  arose  by  construction  of  Law  out  of  the  fact,  and  that  the 
jury  had  nothing  to  concern  themselves  with  but  the  fact  of  the 
publication  in  Middles 

The  defendants  had  given  in  evidence  several  parliamentary  doc- 
uments, to  prove  that  the  dispensing  power  claimed  by  the  king,  and 
against  the  exercise  of  which  the  petition  of  the  Bishops  was  direct- 
ed, was  illegal.     The  then  Attorney-General,  after  some  slight  re- 
marks upon  this  evidence,  was  about  to  conclude  with  a 
somewhat  flippant  expression  of  regret,  that  the  *dcfen-    [  *339  ] 
dants'  counsel  had  spent  their   time  to  so  little  purpose, 
when  the  chief  justice  observed,  "Yes,  Mr.  Attorney,  I'll  tell  you 
what  they  offer,  which  it  will  lie  on  you  to  give  an  answer  to, — they 
would  have  you  show  how  this  has  disturbed  the  government  or  di- 
minished the  King's  authority."     The  Attorney-General  then  con- 
tended, that  malice  or  sedition  arises  by  construction  of  law  out  of 
the  fact ;  and  that  if  the  thing  be  illegal,  the  law  says  it  is  seditions 
and  a  man  shall  come  and  say  he  meant  no  harm  by  it. 

And  afterwards,  whilst  the  Solicitor  General  was  speaking  the 
chief  justice   interrupted   him  by  requesting  him  to  come  to  the 
business  before   them,  and  to  Bhow  that  the  alleged  libel  was  in  di- 
minution of  the  King's  prerogative,  or  that  he  ever  had  such  a  pi 
rogativc. 

Upon  summing  up  to  the  jury,  the  chief  justice,  after  addressing 
the  jury  upon  the  point  of  publication,  proceeded,  "If  you  believe 
this  was  the  petition  they  presented  to  the  King,  then  we  must 
inquire  whether  this  be  a  Libel."     The  chief  justice  then  proceeded 

(c)  3  St.   Tr.   37.    The  object    of  the         (d)  Sir  Francis  Pemberton. 
publication  was  to  prove  that  (ireen,  Berry         (e)  St.  Tr.  •],  J.  2. 
an  I  Hill,  had  been  improperly  convicted  of 
the  murder  of  Sir  Edmund  Godfrey. 


339  CRIMINAL  DIVISION. 

to  intimate  his  opinion,  that  the  publication  in  question  was  a  libel, 
but  as  it  was  a  point  of  law,  invited  his  bretheren  to  give  their 

opinions. 

This  the  other  judges  proceeded  to  do. 
[  *340  ]         Justice  Holloway  concluded  by  saying,  "  I  *cannot 
think  it  is  a  libel ;  it  is  left  to  you,  gentlemen,  but  that 
is  my  opinion." 

Powell,  J.,  also  delivered  his  opinion  to  the  same  effect,  leaving 
the  issue  to  the  conscience  of  the  jury. 

And  afterwards,  when  the  jury  retired  to  determine  upon  their 
verdict,  they  were  permitted  to  take  with  them  the  alleged  libel- 

Upon  the  trial  of  John  Tutchin  (/),  upon  an  information  for 
publishing  a  libel  entitled  the    Observator,  Lord   Holt,  C.  J.  after 
reading  the  printed  papers  alleged  to  be  libels,  told  the  jury,  "  Now 
you  are  to  consider,  whether  these  words  I  have  read  to  you  do  not 
tend  to  beget  an  ill  opinion  of  the  administration  of  the  govern- 
ment."    The  learned  judge,  it  is  true,  concluded  his  address  as  was 
afterwards  observed  by  Lord  Mansfield,  C.  J.,  by  saying,  "If  you 
are  satisfied  that  he  is  guilty  of  composing  and  publishing  these  pa- 
pers in  London,  you  are  to  find  him  guilty."     But  these  words  have 
immediate  reference  to  the  ground  of  defence  upon  which  Mr.  Tut- 
chin's  counsel  meant  to  reply  :  namely,  that  the  offence  had  not  been 
proved  to  have  been  committed  in  London,  and  cannot 
[  *341  ]    be  considered  as  used  for  the  purpose  of  *withdrawing 
the  attention  of  the  jury  from  the  quality  of  the  publica- 
tion, upon  which  they  had  just  before  received  instructions  ;  and  in- 
deed to  suppose  it  had  so  meant  would  prove  too  much,  since  if  so, 
the  jury  were  directed  not  to  find  the  truth  of  the  innuendos. 

The  first  instance  that  appears  where  the  court  directed  the  jury 
to  find  the  defendant  guilty,  if  they  were  satisfied  with  the  evidence 
of  publication,  appears  to  be  that  of  the  King  v.  Clerk  (g-),  for 
publishing  Mist's  Weekly  Journal.  It  appeared,  upon  evidence, 
that  the  defendant  acted  merely  as  servant  to  a  printer ;  that  his 
business  was  to  clap  down  the  press,  and  there  was  little  or  no  proof 
of  a  guilty  knowledge  of  the  contents  of  the  paper,  or  of  his  being 
concerned  in  a  criminal  act.  It  was  objected  by  Serjeant  Hawkins, 
that  the  course  of  a  malicious  aid  traitorous  design  was  not  sup- 
ported by  the  evidence  from  which  it  appeared  that  the  defendant 
acted  ignorantly  and  in  obedience  to  his  master's  directions.     But 

(/  )  4  St.  Tr.  659.  (?)  2  G.  II.  1729.    Barnard.  K.B.  304. 


INCIDENTS  TO  THE  TRIAL.  11 

it  was  answered,  that  since  the  defendant  was  merely  charged  with 
the  publishing  a  -  >ditious  libel,  the  malice  was  immaterial ;  and 
Lord  Raymond,  0.  J.  informed  the  jury,  that  the  fact  of  printing 
and  publishing  only  was  in  i-sue. 

*And  the  same  learned  judge,  upon  the  trial  of  an  in-  [     342  ] 
formation  (// ),  directed  the  jury,  t;  thatthere  were  three 
points  for  consid  'ration  :    the  fact  of    publication,  the  meani 
(these  two  for  the  jury,)  the  question  of  law  or  criminality  for  the 
court  upon  the  record." 

Lord  Chief  Justice  Lee  gave  the  same  direction  in  the  King  v. 
Owen  (J)  and  Lord  Chief  Justice  Ryder  followed  his  example  in 
the  case  of  the  King  v.  Null  (ifc). 

Lord  Mansfield,  soon  after  his  appointment  to  the  high  office  of 
chief  justice,  laid  down  (/)  the  same  doctrine  in  the  case  of  the 
King  v.  Shcbbeare ;  and  though  the  same  learned  judge  repeated 
the  same  directions  in  a  number  of  similar  cases,  all  disquisition  upon 
the  province  of  the  jury  on  these  points  seems  to  have  slept,  till  the 
verdict  given  in  the  case  of  the  King- v.  Wood/all  (»t).  That  was 
the  case  of  an  information  filed  by  the  Attorney-General  for  publish- 
ing a  seditious  libel  signed  Junius ;  the  jury  found  him  guilty  of  the 
printing  and  publishing  only. 

Upon  motion  to  arrest  the  judgment,  it  was  insisted 
upon  for  the  defendant,  that  a  criminal  intention  is  the  |  *343  ] 
essence  of  the  offence  ;  and  that  since  they  had  not  found 
malice,  it  must  be  taken  not  to  have  existed,  since  a  verdict  could 
not  be  supplied  by  inference ;  but  that  at  all  events,  the  verdict  was 
imperfect,  and  that  there  should  be  a  new  trial.  For  the  crown  it 
was  argued,  that  the  law  would  collect  the  intention  from  the  libel 
itself:  that  the  printing  and  .publishing  were  all  the  jury  had  to 
impure  about,  and  that  the  intention  might  be  collected  from  the 
libel  itself. 

Lord  Mansfield,  C.  J.  in  delivering  the  judgment  of  the  court, 
observed,  "  there  may  be  cases  where  the  fact  proved  as  a  publica- 
tion may  be  justified,  or  be  excused  as  lawful  or  innocent:  for  no 
fact  which  is  not  criminal,  in  case  the  paper  be  a  libel,  can  amount 
to  a  publication,  of  which  the  defendant  ought  to  be  found  guilty. 
But  no  question  of  that  kind  arose  in  this  case,  therefore  1  directed 

(/O  9  St.  Tr.  21  (ft)  Per  Lord  Mansfield,  3  T.  R.  ICO,  in 

(i)  10  St.  Tr.  App.  169.  25  G.  II.  K.  B.     the  notes. 
MSS.  Dig.  L.  L.  67.  (m)  5  Burr.  2661. 

(I)  lb. 


343  CRIMINAL  DIVISION. 

the  jury  to  consider  whether  all  the  innuendos,  and  all  the  applica- 
tions to  matters  and  persons,  made  by  the  information,  were  in  their 
judgments  the  true  meaning  of  the  paper ;  if  they  thought  otherwise, 
they  should  acquit  the  defendant,  but  if  they  agreed  with  the  infor- 
mation, and  believed  the  evidence  as  to  the  publication,  they  should 
find  him  guilty."     The  learned  judge  then  proceeded  to  observe, 
that  if  proof  of  the  express  intent  of  the  defendant  were  requisite, 
the  direction  was  wrong ;  but  that,  whether  the  paper 
[  *344  ]    *was  in  law  a  libel,  was  a  question  of  law  upon  the  face 
of  the  record  ;  and  that  the  epithets  in  the  information 
were  formal  inferences  of  law  from  the  printing  and  publishing. 
That  the  verdict  finds  only  what  the  law  infers  from  the  fact ;  that 
where  an  act,  in  itself  indifferent,  if  done  with  a  particular  intent, 
becomes  criminal,  there  the  intent  must  be  proved  and  found  ;  but 
where  the  act  is  in  itself  unlawful,  the  proof  of  justification  lies  upon 
the  defendant,  and  in  failure  thereof,  the  law  implies  a  criminal 
intent." 

Having  thus  declared  his  opinion  upon  the  subject  of  libel,  in  the 
propriety  of  which  his  brethren  agreed  with  him,  Lord  Mansfield 
then  proceeded  to  deliver  the  sense  of  the  court  upon  the  verdict 
before  them ;  the  substance  of  which  was,  that  as  a  doubt  had  arisen 
fro"m  the  introduction  of  the  ambiguous  and  unusual  word  only  into 
the  verdict,  there  should  be  a  venire  de  novo  (n). 

The  legality  of  the  doctrines  laid  down  by  Lord  Mansfield  in 
WoodfaWs  case,  appears  to  have  been  expressly  decided  upon  by 
the  Court  of  King's  Bench,  for  the  first  time,  in  the  case 
[  *345  ]  of  the  King;  against  (o)  Wm.  Davies  Shipley,  Dean  *of 
St.  Asaph.  The  defendant  was  tried  before  Mr.  J.  Bul- 
ler,  at  Shrewsbury  (/>),  upon  an  indictment,  charging  him  with  hav- 
ing published  a  malicious,  seditious,  and  scandalous  libel,  entitled 
"  The  Principles  of  Government,  in  a  Dialogue  between  a  Gentle- 
man and  a  farmer,"  with  intent  to  incite  the  King's  subjects  to  at- 
tempt, by  force  and  violence,  to  make  alterations  in  the  government, 
state,  and  constitution  of  the  kingdom.  The  fact  of  publication  was 
clearly  proved ;  and  of  the  truth  of  the  innuendos  there  was  no 
doubt,  since  they  merely  averred,  that  by  the  letter  G.,  was  meant 
gentleman ;  by  F.,  farmer ;  by  the  King,  the  King  of  Great  Britain. 

(n)    WoodfaWs  case,  5  Burr.  2661.  (P)  AuS-  6th>  1784' 

(o)  3  T.  R.  428,  in  the  notes.  See  also 
Ridgway's  Speeches  of  the  Hon.  Thomas 
Erskine,  vol.  I. 


INCIDENTS  TO  THE  TRIAL.  345 

One  witness  for  the  defendant  stated,  that  upon  his  informing  him 
that  some  gentlemen  were  of  opinion  the  publication  might  do  harm, 
the  defendant  answered,  he  should  be  sorry  to  publish  any  tiling 
that  tended  to  sedition  ;  that  some  time  after,  he  said  upon  reading 
it  at  a  public  meeting,  "  I  am  now  called  upon  to  show  that  it  is  not 
seditious,  but  I  read  it  with  a  rope  about  my  neck ;"  and  that  upon 
another  occasion  (jj)  when  he  had  read  it,  he  gave  his  opinion  that 
it  teas  not  so  bad. 

The  learned  judge,  on  summing  up  to  the  jury,  *de-  [  *346  ] 
clared,  that  it  was  not  for  him  to  say  whether  the  pam- 
phlet was  or  was  not  a  libel ;  and  concluded  his  address  to  them  in 
these  words  : — "If  you  are  satisfied  that  the  defendant  did  publish 
this  pamphlet,  and  are  satislicd  as  to  the  truth  of  the  innuendos, 
in  point  of  law,  you  ought  to  find  him  guilty;  if  you  think  they  are 
not  true,  you  will  acquit  him."  The  jury  brought  in  their  verdict 
"  guilty  of  publishing  only."  The  learned  judge  then  informed 
them,  that  by  such  a  verdict  they  would  negative  the  meaning  of  the 
innuendos,  but  that  if  they  left  out  the  word  only,  the  question  of 
law  would  be  open  upon  the  record,  and  that  the  defendant  might 
move  in  arrest  of  judgment.  Upon  this  direction,  Mr.  Erskine  (the 
defendant's  counsel)  said,  "  I  beg  to  ask  your  lordship  this  ques- 
tion, whether,  if  the  jury  find  him  guilty  of  publishing,  leaving  out 
the  word  only,  and  if  the  judgment  be  not  arrested  by  the  court  of 
King's  Bench,  the  sedition  will  not  stand  recorded  ?" 

Mr.  J.  Buller.  "  No,  it  will  not ;  unless  the  pamphlet  be  a  libel 
in  point  of  law."  The  jury  then  returned  their  verdict,  "  Guilty 
of  publishing,  but  whether  a  libel  or  not  we  do  not  find." 

Upon  a  motion  for  a  new  trial,  on  the  ground  of  a  misdirection 
by  Mr.  Justice  Buller,  the  counsel  for  the  defendant  urged  the  fol- 
lowing points — 

*1.  That  in  every  criminal  case,  upon  a  plea  of  not  *347 
guilty,  the  jury  are  charged  generally  with  the  defend- 
ant's deliverance  from  that  crime,  and  not  specially  from  any  single 
fact.  Upon  this  topic  it  was  urged,  that  the  rules  of  pleading  in 
civil  cases  were  framed  for  the  purpose  of  preserving  the  jurisdic- 
tion of  the  court  and  jury  distinct,  by  a  separation  of  the  law  from 
the  fact ;  but  that  in  criminal  cases,  no  such  boundary  was  ever  at- 
tempted ; — that,  on  the  contrary,  it  had  been  the  custom,  from  the 
time  of  the  Norman  conquest,  for  the  defendant  to  throw  himself 

(q)  Ridgway's  Speeches  of  the  Hod.  Thoma9  Erskine. 


347  CRIMINAL  DIVISON. 

upon  his  country  for  deliverance,  upon  the  general  issue  of  not 
guilty,  and  to  receive  from  the  verdict  of  the  jury  a  complete,  gene- 
ral and  conclusive  deliverance. 

In  support  of  this  doctrine,  the  opinions  of  Sir  Win.  Blackstone, 
Sir  M.  Hale,  Sir  Mich.  Foster  (V),  and  Lord  Raymond,  were  (s) 
referred  to,  and  thence  assuming  that  the  jury  had  a  right  to  give 
a  general  verdict,  it  was  contended,  that  to  enable  them  to  do  so,  it 
was  the  duty  of  the  jndge  to  direct  them  upon  the  law  ;  and  that 
having  omitted  so  to  direct  them,  and  having  informed  the  jury,  that 
neither  the  illegality  of  the  paper,  nor  the  intention  of 
[  *848  ]  the  defendant,  were  within  *thcir  jurisdiction,  the  defend- 
ant had,  in  fact,  been  found  guilty  without  any  investi- 
gation of  his  guilt,  and  without  any  power  left  to  the  jury  to  take 
cognizance  of  his  innocence. 

That  2dly.  No  act  is  in  itself  a  crime,  as  abstracted  from  the 
malicious  intention  of  the  actor,  the  establishment  of  the  fact  being 
nothing  more  than  evidence  of  the  crime,  and  not  the  crime  itself, 
unless  the  jury  render  it  so  by  referring  it  voluntarily  to  the  court 
by  special  verdict.  That  in  every  case,  a  general  verdict,  which  is 
as  comprehensive  as  the  issue,  unavoidably  involves  a  question  of 
law  as  well  as  fact,  and  therefore  that  a  judge  who  means  to  direct 
a  jury  to  'find  generally  against  a  defendant,  must  leave  to  their 
consideration  everything  which  goes  to  the  constitution  of  that 
general  verdict,  and  to  direct  them  how  to  form  that  general  con- 
clusion of  guilty,  which  is  compounded  of  both  law  and  fact. 

That  the  verdict  must  be  taken  to  be  either  general  or  special ; 
if  general,  it  had  been  found  without  a  co-extensive  examination — 
if  special,  the  term  guilty  could  have  no  place  in  it:  that  the  term 
guilty  was  either  operative  and  essential,  or  a  mere  epithet  of  form  ; 
if  essential,  then  a  conclusion  of  criminal  intention  had  been  ob- 
tained from  the  jury  without  permitting  them  to  exercise 
[  *349  ]  their  judgment  on  the  defendant's  *evidence — if  formal, 
no  judgment  could  be  founded  on  it. 
3dly.  That  the  circumstance  of  the  libel's  appearing  upon  the 
record  did  not  distinguish  it  from  other  criminal  cases.     For  first, 
the  whole  charge  does  not  always  appear  upon  record ;  since  a  part 
of  a  publication  may  be  indicted,  and  may,  when  separated  from 
the  context,  bear  a  criminal  construction ;  and  since  the   court  is 
circumscribed  by  what  appears  upon  the  record,  the  defendant  could 

(r)  Foster,  256.  (s)  2  Ld.  Ray.  1492. 


INCIDENTS  TO  THE 

neither  demur  to  the  indictment  nor  arresl  the  judgment  afters 
verdict  of  guilty.    That  the  defendant  is  equally  shut  out  (by  the 

doctrine  insisted  on)  from  deriving  any  aid   from  context,  in  Iris 
defence  before  a  jury,  for  though  ho  should   read  the  exphu. 
context  in  evidence,  he  can  derive  no  advantage  from  readinj 
tin- jury  mv  bound  to  liud  him  guilt\  of  publishing  the  matter  con- 
tain^! in  the  indictment,  however  its  innocence  may  be  established 
by  a  view  of  the  whole  work;  that  the  only  operation  of  the  con- 
ia  to  show  the  matter  upon  record  Dot  to  be  libellous,  from  the 
consideration  of  which,  as  being  matter  of  law  for  the  consideration 
of  the  court,  they  are  excluded  :   that  to  allow  the  jury  to  go  into 
the  context,  in  order  to  form  a  correct  judgment  of  the  part  indict- 
ed, is  a  palpable  admission  of  their  right  to  judge  the 
merits   of  the   paper  and  the  'intention  of  its  author;        »350  ] 
and  that  it  would  be   preposterous  to  say  that  the  jury 
have  a  right  to  decide  a  paper  criminal  as  far  as  appears  upon  the 
I,  to  be  legal,  when  explained  by  the  whole  work,  of"  which  it 
is  a  part ;  but  that  they  have  no  right  to  say,  that  the  whole  work, 
if  it  happen  to  be  set  out  on  the  record,  is  innocent  and  1 

That  it  is  equally  absurd  to  contend  that  the  intention  of  the 
publisher  may  be  shown  as  a  fact  by  the  evidence  of  any  extrinsic 
circumstances — such  as.  the  context ;  and  in  the  same  breath  to 
say  that  it  is  an  inference  of  law  from  the  act  of  publication  which 
the  jury  cannot  exclude.  That  the  consequences  of  such  a  doc- 
trine would  be  most  dangerous,  since,  if  a  seditious  intention  could 
be  inferred  from  publishing  any  paper,  charged  to  be  a  libel,  a 
treasonable  intention  might  with  equal  reason  be  inferred  from  pub- 
lishing a  paper  charged  to  be  an  overt  act  of  treason. 

dthly.  That  a  seditious  libel -contains  no  matter  of  law  ;  for  the 
court,  in  considering  the  question  of  a  libel,  as  it  appears  upon  the 
record,  are  circumscribed  in  forming  their  judgment,  and  can  de- 
rive ho  assistance  from  extrinsic  circumstances  ;  since,  if  they  were 
to- break  through  their  legal  fetters,  their  judgment  would  be  found- 
ed in  facts,  not  in  evidence;  but  that  such  objec- 
tions *would  vanish  if  the  seditious  tendency  be  consid-  [  *351  J 
ercd  as  a  question  of  fact,  sine  •  the  jury  can  examine,  by 
evidence,  all  those  circumstances,  which  establish  the  seditious  ten- 
dency of  the  paper,' from  which  the  court  are  shut  out. 

5thly.  That  in  all  caseswhen  the  mischievous  intention, which  is 
the  essence  of  the  crime,  cannot  be  collected  by  simple  inference 
from  the  fact  charged,  because  the  defendant  goes  into  evidence  to 

Vol.  II.  51 


351  CRIMINAL  DIVISION. 

rebut  such  inference,  the  intention  becomes  a  pure  unmixed  ques- 
tion of  fact  for  the  consideration  of  the  jury.  That  "  the  publica- 
tion (/)  of  that  which  is  unlawful  is  but  evidence  of  a  criminal  in- 
tent ;"  but  that,  in  the  principal  case,  evidence  had  been  offered  in 
favor  of  the  defendant,  though,  by  the  learned  judge's  directions  to 
the  jury,  the  whole  of  it  had  been  removed  from  their  considera- 
tion. That  in  Lamb's  (u)  case  it  was  laid  down,  that  every  one 
who  should  be  convicted  of  a  libel  must  be  the  writer,  contriver,  or 
malicious  publisher,  knowing  it  to  be  a  libel ;  that  the  knowledge 
there  meant  was  not   a  mere  knowledge  of  the  contents,  for  that 

would  make  criminality  depend  upon  the  consciousness 
[  *352  ]     of  an  act,  and  not  on  the  knowledge  *of  its  quality,  which 

would  involve  lunatics  and  children  in  all  the  penalties 
of  criminal  law. 

Lord  Mansfield,  C.  J.  in  delivering  the  judgment  of  the  court, 
observed,  "  Four  objections  have  been  made  ;  the  first  is  peculiar 
to  this  case,  namely,  that  evidence  of  a  lawful  excuse  or  justifica- 
tion was  not  left  to  the  jury  as  a  ground  of  acquittal.  Upon  every 
such  defence,  there  arise  two  questions — the  one  of  law,  the  other 
of  fact.  Whether  the  fact  alleged  (supposing  it  true)  be  a  lawful 
excuse,  is  a  question  of  law  ;  whether  the  allegation  be  true,  is  a 
question  of  fact  ;  and  according  to  this  distinction,  the  judge  ought 
to  direct  and  the  jury  ought  to  follow  his  direction ;  though  by 
means  of  a  general  verdict  they  are  entrusted  with  the  power  of 
confounding  the  law  and  fact,  and  of  following  the  prejudices  of 
their  affections  and  passions." 

The  learned  judge  then  proceeded  to  comment  upon  the  evidence 
offered  by  the  defendant,  which  the  court  considered  as  rather  ag- 
gravating his  conduct  than  supplying  a  ground  of  defence  to  be  left 
to  the  jury.  His  lordship  then  observed,  "  The  second  objection  is, 
that  the  judge  did  not  give  his  own  opinion  whether  the  writing  was 
a  libel,  or  seditious  or  criminal.     The  third,  that  the  judge  told  the 

jury  that  they  ought  to  leave  the  question  upon  the  rc- 
[  *353  ]    cord  to  the  court,  if  they  had  no  doubt  of  the  ^meaning 

and  publication."  That  the  answer  to  these  objections 
is,  that,.by  the  constitution,  the  jury  ought  not  to  decide  the  ques- 
tion of  law,  whether  such  a  writing  of  such  a  meaning,  published 
without  a  lawful  excuse,  be  criminal,  and  that  they  cannot  decide  it 

(i)  Lord  Mansfield's  doctrine  in  the  case         (u)  9  Co.  59. 
of   Wood/all  and   Jllmon,  5  Burr.  2661, 
2686. 


INCIDENTS  OF  TIIE  TRIAL.  353 

against  the  defendant,  because,  after  a  verdict,  it  remains  open 
upon  the  record.  That  this  La  peculiar  to  the  form  of  a  prosecution 
for  libel,  that  the  question  of  law  remains  open  for  the  court  on  the 
record,  and  that  tin-jury  cannot  decide  il  against  the  defendant; 

so  that  a  general  verdict  that  the  defendant  is  guilty  L8  -univalent 
to  a  special  verdict  in  other  cases. 

That  no  case  had  been  cited  of  a  special  verdict  in  a  prosecution 
for  libel,  leaving  the'  question  of  law  upon  record  to  the  court. 
That  a  criminal  intent,  from  doing  a  thing  in  itself  criminal  without 
a  lawful  excuse,  is  an  inference  of  law.  That  the  practice  objected 
to  had  continued  ever  since  the  revolution  without  opposition.  That 
the  fundamental  definition  of  trials  by  jury,  depends  upon  an  uni- 
versal maxim  without  an  exception,  Ad  quaestionem  facti  respondent 
juratores,  ad  qucestionem  juris  respondent  judices;  that  where  the 
questions  can,  by  the  form  of  pleading  be  separated,  the  distinction 
is  preserved  upon  the  face  of  the  record  ;  but  that  when  by  the 
form  of  pleading  the  two  questions  are  blended  together, 
and  cannot  be  separated  *upon  the  face  of  the  record,  [  *354  ] 
the  distinction  is  preserved  by  the  honesty  of  the  jury. 

His  lordship  concluded  by  giving  the  judgment  of  the  court,  that 
the  rule  for  a  new  trial  should  be  discharged  (a;). 

Lord  Kenyon,  C.  J.  adopted  Lord  Mansfield's  doctrine  in  sum- 
ming up  to  the  jury  in  the  case  of  the  King-  v.  Withers  (jf). 

After  this  brief  review  of  the  principal  decisions  upon  this  inter- 
esting topic,  little  remains,  but  to  quote  the  terras  used  by  the  legis- 
lature, when  parliament  deemed  it  proper  to  interfere  and  remove 
all  doubt  from  this  important  subject. 

In  the  statute  32  George  III.  c.  GO,  it  is  recited  that  doubts  had 
arisen,  whether  on  the  trial  of  .an  indictment  or  information  for  the 
making  or  publishing  any  libel,  when  an  issue  or  issues  arc  joined 
between  the  King  and  the  defendant  or  defendants,  on  the  plea  of 
not  guilty  pleaded,  it  be  competent  to  the  jury  impanneled  to  try 

the  same  to  give  their  verdict  upon  the  whole   matter  in  issue  ;   and 

it  is  then  declared  and  enacted  that  on  every  such  trial 

the  jury '-worn  to  try  the  issue  may  give  a  general  ver-    [  *355  ] 

diet  of  guilty  or  not  guilty  upon  the  whole  matter  put  in 

issue  upon  such  indictment  or  information,  and  shall  not  be  required 

(.r)  Mr.  Erskine  afterwards  moved   in        (y)  8T.  R.  428. 

arrest  of  judgment,  and  judgment  wus 
arrested,  the  court  considering  the  indict- 
ment to  be  defective. 


354  CRIMINAL  DIVISION. 

or  directed  by  the  court  or  judge,  before  "whom  such  indictment  or 
information  shall  be  tried,  to  find  the  defendants  guilty,  merely  on 
the  proof  of  the  publication  by  such  defendant  or  defendants  of  the 
paper  charged  to  be  a  libel,  and -of  the  sense  ascribed  to  the  same  in 
such  indictment  or  information.  By  the  second  section  it  is  provided 
"  that  on  every  such  trial  the  court  or  judge ,  before  whom  such  in" 
dictment  or  information  shall  be  tried,  shall,  according  to  their  or 
his  discretion,  give  their  or  his  opinion  and  direction  to  the  jury  on 
the  matter  in  issue  between  the  King  and  the  defendant  or  defend- 
ants, in  like  manner  as  in  other  criminal  cases."  By  the  third  sec- 
tion it  is  also  provided,  "  that  nothing  herein  contained  shall  extend, 
or  be  construed  to  extend,  to  prevent  the  jury  from  finding  a  special 
verdict,  in  their  discretion,  as  in  other  criminal  cases."  And  by 
the  fourth  section,  "  in  case  the  jury  shall  find  the  defendant  or  de- 
endants  guilty,  it  shall  and  may  be  lawful  for  the  said  defendant  or 
defendants  to  move  in  arrest  of  judgment,  on  such  ground  and  in 

such  manner  as  by  law  he  or  they  might  have  done  be- 
[  *856  ]  fore  the  passing  of  this  act,  any  *thing  herein  contained 

to  the  contrary  notwithstanding."  [1] 
It  is  observable,  that  the  first  clause  in  this  statute  is,  so  far  as 
regards  the  giving  a  general  verdict,  merely  declaratory,  placing  in- 
formations and  indictments  for  libels  on  the  same  footing  with  those 
for  any  other  offences.  The  latter  branch  is,  in  its  terms,  purely 
negative  and  restrictive,  and,  except  that  it  amounts  to  a  legislative 
disapproval  of  the  directions  which  had  been  given  to  juries  in  par- 
ticular instances,  is  rendered  unimportant  by  the  subsequent  clause,, 
which  directs,  affirmatively,  what  the  court  or  judge  shall  do  on  such 
trials.  This  (the  second)  section  provides,  that  the  court  or  judge 
shall,  according  to  their  or  his  discretion,  give  their  or  his  opinion 

[1]  In  1805  a  similar  act  was  passed  by  the  Legislature  of  the  State  of  New-York, 
see  Statutes  of  JVew-  York,  4th  vol.  Webster  §  Skinner's  ed.  ch.  90,  p  222.  The  act 
of  1805,  however,  is  broader  in  its  terms  than  that  of  32  Geo.  III.,  as  it  not  only  like 
that  act  declares  the  right  of  the  jury  to  find  a  general  verdict  and  for  bids  a  direction 
to  find  the  defendant  guilty,  merely  on  the  proof  of  the  publication  of  the  matter  charged 
to  be  libellous,  and  of  the  sense  ascribed  to  it  in  the  indictment,  but  declares  and  en- 
acts that  on  every  indictment  for  a  libel,  the  jury  v:ho  shall  try  the  same,  shull  hare  a 
right  to  determine  the  law  and  the  fact  tinder  the  direction  of  the  court,  in  like  manner 
as  in  other  criminal  cases;  which  principle  was  subsequently  incorporated  in  the  Bill 
of  Rights  and  in  the  Amended  Constitution  of  the  State.  Const.  Art.  7,  section  9, 
and  1  R.  S.  94,  sec.  21.  The  act  of  1805,  like  that  of  82  Geo.  makes  provision  for  a 
motion  in  arrest  on  the  part  of  the  defendant,  notwithstanding  that  the  jurors  are  au- 
thorized to  pass  upon  the  law  as  well  as  the/</d.s  of  the  case.  See  the  history  of  the 
passage  of  the  act  of  1805,  page  252,  supra,  note  [1] 


INCIDENTS  OF  THE  TRIAL.  359 

on  the  matter  in  issue,  in  like  manner  as  in  other  criminal  cases.  It 
is,  therefore,  observable,  that  the  object  of  the  legislature  was  to 
remove  all  anomalies  and  peculiarities  by  which  trials  for  libels 
were  distinguished  from  those  for  any  other  offences.     Now,  the 
principal  peculiarity,  and  that  0:1  which  the  difference  in  practice 
originated,  was  this:  that  in  the  case  of  libel,  the  alleged  libel  was 
stated  on  the  record,  on  which  account  it   was  unnecessary  to  de- 
cide at  the  trial  upon   the  quality  of  the  matter  publish- 
ed.    But,  by  the  express  provision  of  this  clause,  the  *jury  [  *357  ] 
are  to  b  •  directed  as  in  other  criminal  cases ;  and  in  other 
criminal  cases,  the  ordinary  course  is  to  advise  and  direct   the  jury 
as  to  the  criminal  quality  of  the  transaction,  supposing   the  facts  to 
be  proved.     It  seems,  therefore,  to  follow,  that  the  court  or  judge 
is  bound  to  give  an  opinion  on  the  legal  quality  of  the  alleged  libel, 
as  stated  on  the  record,  and  the  jury  are  not  to  convict  without  the 
previous  sanction  of  the  judge's  opinion  that  the  act  is  criminal, 
though,  in  some  instances,  they  had  been  required  to  convict,  where 
they  were  satisfied  as  to  the  fact  of  publication  and  the  truth  of  the 
averments.     The  opinion  and  direction  to  the  jury  is  to  be  given  on 
the  matter  in  issue ;  by  these  terms  it  is  not,  it  seems,  to  be  under- 
stood that  the  court  or  judge  is  called  upon  to  give  any  opinion  or 
direction  in  the  affirmative  or  negative  upon  the  whole  of  the  issue, 
but  only,  as  in  other  cases,  conditionally  and  hypothetically  upon 
the  law,  as  it  arises  on   different  branches  of  the  evidence.     As, 
whether  if  the  facts  be  proved  to  the  satisfaction  of  the  jury,  which 
the  evidence  tends  to  prove,  they  amount  in  law  to  a  publication; 
whether  the  circumstances  proved  raise   an  absolute  or  qualified 
justification  ;  whether,  under  these  circumstances,  proof  of  express 
malice  be  essential,  or  in  the  absence  of  any  evidence  of  facts  which 
can  justify  or  excuse,  the  jury  ought  to  infer    malice 
•from  the  very  act  of  publishing  noxious  and  criminal      [  *358  ] 
mutter.     The  third  section   seems  to  have   been   intro- 
duced merely  for  the  purpose  of    repelling  any  inference   which 
might  otherwise  have  arisen  from  the  terms  of  the   first,  thai  the 
jury  were  bound  to   give  a  general  verdict.     The   fourth   section 
seems  to  have  been  suggested  by  some  apprehension,  that,  without 
an  express  clause  to  that  effect,  the  defendant  might  be  considered 
to  be  excluded  from  objecting  that  the  alleged   libel,  as    stated  on 
the  record,  was  not  in  itself  illegal,  and  that  the  publishing  of  it 
was  not  criminal.     As  the  second  section   provides,  in   effect,  that 
the  court  or  judge  shall,  at  the  trial,  direct  the  jury  as  to  the  crimi- 
51* 


358  CRIMINAL  DIVISION. 

nal  quality  of  the  alleged  libel,  and  the  jury  were  at  their  option  to 
give  a  general  verdict,  it  was  probably  deemed  to  be  expedient  to 
prevent,  by  an  express  enactment,  all  doubt  on  the  question,  whether 
such  opinion  and  verdict  were  to.be  considered  as  final  and  conclu- 
sive. It  seems,  therefore,  that  the  legislature  meant  to  leave  the 
question,  whether  the  matter  published  amounted  to  a  libel,  as  be- 
fore, a  question  of  law  [1]  ;  the  fourth  clause  expressly  provides, 
that  the  defendant  may  still  move  in  arrest  of  judgment,  on  such 
ground  as  he  might  have  done  before  ;  and  as,  before  the  statute, 
the  defendant  might  certainly  have  arrested  the  judgment  on  the 

[1]  At  the  time  of  the  publication  of  the  9econd  English  edition  of  this  treatise  (in 
1880),  the  law  on  this  subject  was   no   doubt  held  in  England  as  stated  in  the  text,  viz: 
that  notwithstanding   the   act  of  32   Geo.  III.  ch.  60,  the  question  whether   the  matter 
published  amounted  to  a  libel  was  a  question   of  law.     The  "views  of  Best,  J.  as  to  the 
effect  of  that  act  are  briefly  stated  in  the  note  of  the  author  on  the  present  page,  (viz. 
note  z.  p.  S59)  and  will  be  found  more  in  detail   in  the  report  of  the  case  of  The  King 
v.  Burdeit,  4  Barn,  and  Aid.  95,  131,  decided  in  1820.  That  case  was  tried  before  Best, 
J.  who  charged  the  jury  that  they  must  take  the  law  from  him  as  to  whether  the  publica- 
tion was  or  was  not  a  libel,  in  which  direction  he  was  sustained  by  the  whole  court,  who 
held  that  such  was  the  correct  mode  of  leaving  the  question  to  the  jury,  under  the  act  of 
23  Geo.  III.     In  1828,  Best,  then  holding  the  office  of  Chief  Justice   of  the  King's 
Bench,  repeated  in  Levi  v.  Milne,  4   Bingham,  195,  the  doctrine  advanced   by  him  in 
The  King  v.  Burdeit  as  to   the  effect  of  the   act  of  32  Geo  III  upon  the  rights  of  the 
jury,  and  insisted  that  the  act  had  no  applicability  to   civil  cases.     In  1840,  however, 
that  act  received  a  construction  in  the  case  of  Baylis  v.  Lawrence,  11  Adolph.  and  Ellis 
920,  more  in  conformity  with  the  intention  of  the  law-makers,  according  to  the  history 
of  the  act  given  in  the  preceding  part  of  this  chapter.     Previous  to  that  act,  the  only 
questions  submitted  to  the  jury  were;'l,  as  to  the  publication  of  the  alleged  libel;  and 
2,  as  to  the  truth   of  the  innuendoes,  leaving  the  question  of  libel  or  no  libel  to  be  de- 
termined by  the  court ;  and  to  remedy  the  mischief  which  had  thus  crept  into  the  ad- 
ministration of  the  law,  the  act  was   passed.     Baylis  v.  Lawrence  was  an  action  for 
libel.  The  presiding  judge  submitted  the  case  to  the  jury  without  expressing  any  opinion 
whatever,  whether  the  publication  was  or  was  not  libellous,  or  even  giving  any  instruc- 
tions as  to  what  constituted  a  libel.     Of  the  course  thus   taken  by  the  judge  complaint 
was  made  on  the  part  of  the  plaintiff,  against  whom  the  verdict  was  found.     Lord  Den- 
sun,  C.  J.  held  that  the  judge  was  not  bound  to  state  his  opinion  to  the  jury  whether  the 
publication  was  or  was  not  libellous.     The  act  of  32  Geo.  III.  he  said  was  applicable 
only  to  criminal  cases,  but  it  was  a  declaratory  act,  and  the  importance  of  declaring  the 
law  existed  only  in  the  case  of  criminal  libels.     The  act,  therefore,  he  said   furnished 
clear  evidence,  that  the  judge  is  not  in  civil  cases   bound  to  state  his  opinion.     He  fur- 
ther observed  that  he  had  always  followed  the  practice  adopted  in  this  case  by  tho  pre- 
siding judge,  of  leaving  it  to  the  jury   to  say'whelher  under  all   the  circumstances,  the 
publication  amounts  to  a  libel.     The  other  judges   acquiesced  in  the  doctrine  of  the 
Chief  Justice  that  the  law  in  criminal  cases,  as  declared  by  the  act  of  32  Geo.  III.  is 
the  law  in  civil  cases  ;  in  respect  to  which  a  jury  has  never  been  required  to  find  a  ver- 
dict against  the  defendant  upon  the  mere  proof  of  publication  and  of  the  truth  of  the 
innuendoes,  leaving  the  question  of  libel  or  no  libel  to  the  determination  of  the  court. 
Previous  to  the  decision  of  Baylis  v.  Lawrence,  Lord  Chief  Justice  Abbott,  in  the  case 


INCIDENTS  OF  THE  TRIAL. 

ground  that  the  matter  published  was  not  libellous,  it 
seems  that  no  'alteration  was  intended  to  !»•  mad'.'  in  this  [  ';;."'.i  ] 
respect,  bnt  that  tin'  objection,  that  the  matter  published 
was  innoxious,  a-  it  stood  on  the  record,  was  -till  available.  Bnt, 
whilst  this  i^  the  case,  it  is  obvious  that  the  question  must  remain 
a  question  of  law;  a  general  acquittal  would  be  conclusive^  as  in 
all  other  cases,  but  the  finding  of  the  jury,  as  to  the  mere  crimi- 
nal quality  of  the  alleged  libel,  either  by  a  general  verdict  of  guilty 
or  by  a  Bpecial  verdict,  must  be  immaterial, so  long  ns  the  objection 
may  be  taken  to  the  record  itself,  that  it  charges  no  libel  in  point 
of  law,  notwithstanding  the  finding  of  the  jury  in  fact  (c). 

(x)  See  R.  v.  Holt,  5  T.  R.  4?G.  In  the  prevent  tlie  question  from  being  left  to  the 
case  of  R.  v.  Burdett,  4  B.  and  A.  131,  jury  in  the  manner  in  which  it  was  left  be- 
Best,  J.  observes,  "  It  must  not  be  sup-  fore  that  time.  Judges  are,  in  express 
posed  that  the  statute  of  George  the  Third  terms,  directed  to  lay  down  the  law  as  in 
made  the  question  of  libel  a  question  of  other  cases.  In  all  cases  the  jury  may 
fact;  if  it  had,  instead  of  removing  an  an-  fincl  a  general  verdict;  they  do  so  in  cases 
omaly,  it  would  have  created  one.  Libel  is  of  murder  and  treason,  but  then  the  judge 
a  question  of  law,  and  the  judge  is  the  tells  them  what  is  the  law,  though  they 
judge  of  the  law  in  libel,  as  in  all  other'  may  find  against  him.  unless  they  are  satis- 
cases;  the  jury  having  the  power  of  act-  fied  with  his  opinion.  And  see -1  Bingh. 
ing  agreeably  to  his  statement  of  the  law  195. 
or  not.     All  that  the  statute  docs,  is  to 

of  Fairman  v.  Ives,  5  Barn,  and  Aid.  642,  submitted  to  the  jury  the  facts  and  circum- 
stances attending  a  publication  alleged  to  be  libellous,  and  left  it  to  them  to  declare 
whether  it  was  or  was  not  libellous  ;  and  thte  jury  having  found  for  the  defendant,  the 
court  unanimously  refused  to  grant  a  new  trial.  The  same  course  was  pursued  in  Ha  ire 
v.  Wilson,  9  Barn,  and  Cres.  472,  decided  1820;  and  in  Fisher  v.  Clement,  1" 
and  Cress.  \~2,  decided  in  1830.  See  also  all  the  cases  cited  in  this  work  in  chapter  XFII 
of  the  1st  vol.  of  Starkie  on  Slimier.  Am.  ed.  1843,  on  the  subject  of  privileged  com- 
munications— in  all  of  which  invariably  the  question  of  whether  the  publication  was  or 
was  not  libellous,  was  submitted  to  the  jury. 


CHAPTER  XVII 


Op  the  Proceedings  after  the  Trial. 

[  *3G0  ]  *The  court  will  not,  after  the  defendant's  conviction, 
make  an  order  on  the  prosecutor  to  deposit  the  original 
libel  with  the  officer  of  the  court  (a).'  After  the  defendant  has 
been  found  guilty  on  a  criminal  information,  it  is  a  matter  of  course 
that  he  should  stand  committed,  pending  the  consideration  of  the 
judgment,  unless  the  prosecutor  expressly  consent  to  his  standing 
out  upon  bail  (£>). 

The  defendant  cannot  (c)  move  for  anew  trial  after  the  first 
four  days  of  the  next  term  after  conviction  ;  but  if  it  appear  to 
the" court  that  injustice  has  been  done  by  the  verdict,  they  will,  ex 
mero  molu,  interfere  after  that  period  and  grant  a  new  trial. 

The  vice  of  one  or  more  counts  is  no  ground  for  ar- 
[  *361  ]  resting  *the  judgment  (d),  provided  there  be  one  valid 
count  in  the  information  or  indictment,  though,  as  already 
seen,  it  is  otherwise  in  a  civil  action,  where  general  damages  are 
given,  since  in  the  latter  case  the  court  cannot  apportion  the  dama- 
ges, and  say  how  much  was  intended  to  be  given  in  respect  of  the 
defective  counts. 

When  the  defendant  is  brought  up  for  judgment,  affidavits  are 
produced  either  by  the  prosecutor  or  the  defendant ;  and  observa- 
tions concerning  them  relate  either  to  their  contents  or  to  the  order 
in  which  they  are  read. 

Where  a  defendant  has  been  convicted,  the  prosecutor  may  read 
affidavits  in  aggravation,  though  made  by  witnesses  who  were  ex- 
amined at  the  trial ;  in  which  case  the  defendant  will  (e)  be  at 
liberty  to  answer  them. 

(a)  2  East.  361.     R.  v.  Cator.  {d)  R.  v.  Benfteld  and  Sanders,  Burr. 

(6)  R.  v.  Wadinglon,  1  East.  143.  980. 

(c)  5  T.  R.  436.     1  East.  145.  (e)  R.  v.  Sharpness,  1  T.  R.  228. 


JUDGMENT.  361 

And,  where  a  defendant  had(/)  Buffered  judgment  by  default, 

the  prosecutor  was  allowed  to  read  affidavits  in  aggravation,  con- 
taining expressions  made  use  of  by  the  defendant,  confirming  and 
ting  his  guilt,  which  had  been  uttered  by  him  in  the  hearing 
of  two  persons,  and  by  them  afterwards  related  to  the  persons 
making  the  affidavit,  the  prosecutor  having  first  made 
•affidavits  that  an  application  had  been  made  to  both  [  "302  ] 
those  persons  to  coinc  forward  with  their  testimony, 
which  they  had  refused,  and  it  appearing  to  the  court  that  they 
were  under  control.  But  the  court  allowed  the  defendant  and 
those  persons  time  to  come  forward  and  answer  the  facts.  And 
such  evidence  would  be  inadmissible,  unless  it  appeared  that  the 
person  refusing  to  give  evidence  was  Qr)  under  the  control  of  the 
defendant. 

To  show  the  malice  of  the  defendant,  it  is  usual  for  the  prosecu- 
tor to  state  upon  his  affidavit  similar  libels  published  since  the  con- 
viction (//). 

After  judgment  by  default  in  a  criminal  prosecution,  when  the 
defendant  is  brought  up  for  judgment,  each  parly  should  come  pre- 
pared with  affidavits,  stating  his  case  :  and  if,  in  the  course  of  the 
inquiry,  the  court  wish  to  have  any  point  further  explained,  they 
will  give  the  defendant  an  opportunity  of  answeriug  it  on  a  future 
day  (i). 

*The  defendant  is,  in  general,  at  liberty  to  introduce  [  *3G8  ] 
any  affidavit  tending  to  show  that  his  act  did  not  result 
from  pure  malice,  but  proceeded  from  some  motive  less  reprehensi- 
ble ;  how  far  he  should  proceed  in  his  statement  is,  of  course,  a 
matter  of  prudence  and  discretion  to  be  exercised  upon  the  particu- 
lar circumstances  of  the  case.  . 

Any  reflections  upon  the  prosecutor  beyond  those  conveyed  by  a 
bare  Btatement  of  facts,  and  any  attempt  to  impugn  the  credit  of 
the  witnesses,  or  the  justice  of  the  conviction,  are  inconsistent  with 
the  situation  of  the  defendant,  who  Btands  before  the  court  as  a 
supplicant  for  its  indulgence,  and  not  in  the  character  of  an  accuser. 

It  seems  to  lie  settled  that  a  defendant  is  not  at  liberty  to  show- 

(/)  Ii.  v.  Archer,  '1  T.  R.  204.  way  of  aggravating  or  mitigating  Uiepun- 

(</)  Ii.  v.  Pinkerton,  2  ishmeni  :  but  the  court  will  take  care  not 

(/i)   See  fl.v.    Withert,  8  T.   U.   A-''2.  to  inBict  a  greater  punishment   than   the 

Where  Lord  Kenyon,  Chief  Justioe,  said,  principal  offenoe  will  warrant,"     The  same 

"  It  is  well  settled  that  the  oondaot  of  the  was  ruled  in  the                            iter. 

defendant,  subsequent  to  his    conviction,  (»')  R.  v.  Wilton,  AT.  K 

may  be  taken  into  consideration    cither  by 


363  CRIMINAL  DIVISION. 

by  affidavit,  that  a  libel,  imputing  a  criminal  charge,  was  true,  whe- 
ther the  party  reflected  on  be  or  be  not  the  prosecutor  (j)  [  a  a]. 
*In  the  case  of  the  King-  v.  Burdett  (k),  where  the 
[  *364  ]    libel   imported  that   certain  of  the  King's   troops  had 

maimed  certain  of  the  King's  subjects,  it  was  held  that  it 
was  not  competent  to  the  defendant  to  use  affidavits  after  conviction, 
in  mitigation  of  punishment,  for  the  purpose  of  showing  that  the 
facts  stated  were  true.  But  the  libel  purporting  to  have  been  writ- 
ten in  consequence  of  the  defendant's  having  read  statements  to  that 
effect  in  different  newspapers,  an  affidavit  that  he  had  read  those 
statements  in  the  newspapers,  and  that  he  had  no  doubt,  in  his  own 
mind,  that  the  statement  was  true,  were  allowed  to  be  read. 

In  the  above  case,  the  parties  to  whom  the  criminal  charge  was 
imputed  by  the  libel,  were  not  the  prosecutors,  and  some  stress  was 
laid  on  that  circumstance  by  the  court,  in  giving  their  judgment. 
In  the  late  case  of  the  King-  v.  Ha/pin  (/),  such  affidavits  were 

excluded,  although  the  party  libelled  was  himself  the 
[  *365  ]    prosecutor.     But  *it  was  then  also  held,  that  though  the 

defendant  was  not  at  liberty  to  show  by  affidavit  that  the 
charge  was  true,  yet  that  he  might  disclose  such  circumstances  as 
might  induce  the  court  to  believe  that  he  supposed  it  to  be  true  when 
he  published  the  libel  (in'). 

(j)  R.  v.  Hal  pin,  9  B.  and  f.C  65.     In  [a  a]  In  the  case  of  The  King  v.  Brad- 

the  case  of  the  King  v.  Roberts,  Mich.  T.  ley,  2  M.  &  R.  152,   the  court  of  K.  B.  is 

8  G.  I.   supra   v.  II,  p.  232,  Dig.  L.  L.  16.  stated  to  have  observed,  on  a  defendant  be- 

Selwyn's  Nisi  Prius  1045,  7th  edit.     Holt's  ing  brought  up  to   receive  judgment  for  a 

L.  L.  273.     Lord  Hardwicke  is  reported  to  libel,  after  conviction  upon  the  trial  of  an 

have   intimated,    that  the   truth  of  a  libel  information,  that  he  could   not   then   urge 

might  be  shown   in   mitigation  of  punish-  the  truth  of  the  charge  after  having  been 

ment.     It  is,  however,  to  be  observed  that,  put  to  fair  proof  of  it  upon  the  trial — quere? 

in  the  same  case,  the  same  learned  judge  is  (/<•)  4  B.  and  A.  314. 

reported  to  have  stated,  that   truth  would  (/)  9  B   &  C.  65. 

be  no  justification   in  an  action  for  a  libel-  (m)  But  in  the  case  of  the  King  v.  Bam 

The  latter  position  is   certainly   incorrect,  ker,  Bull.  N.  P.  9,  which  was  an   informa- 

according  to  later  authorities,  although  the  tion  against  the  defendant  for  publishing  a 

point   was  formerly  doubted.     Supra  v.  I>  libel  against  Mr.  Swinton,  of  Wadham  col- 

p.  232,  3.  lege,  Oxon,   charging   him   with   criminal 

In  the  case  of  the  King  v.  Draper,  practices,  Lee,  C.  J.  refused  to  let  the  de- 
bited by  Best,  J.  in  the  case  pf  the  King  fendant  give  evidence  of  his  reasons  for 
Y.Burdelt,4  B.  and  A.  321,)  the  court  doing  it,  viz.  that  the  supposed  criminal 
received  affidavits  of  the  truth  of  the  accomplice  told  him  so;  for,  he  said,  the 
charge;  but  that  was  done  by  the  consent  only  question  was,  whether  the  defendant 
of  the  prosecutor.  For  other  observations  was  guilty  of  printing  or  publishing  the 
on  this  subject,  see  the  Preliminary  Dis-  libel,  and  that,  though  it  were  offered  by 
course.  way  of   mitigation  only,  yet,  in  fact,  it 


JUDGMENT.  305 

General  evidence  of  good  character,  ie  always  proper  to  be  intro- 
duce! into  affidavits  in  mitigation. 

It  is  not  usual  to  give  the  defendant  an  opportunity  of  answering 
at  a  i'u  t urc  day  the  affidavits  produced  by  the   prosecutor,  where 
they  do  not  extend  beyond  the  allegations  contained  in 
the 'indictment,  though  judgment  should  have  been"suf-    | 
fered  by  default  (n).     Jhit  where  affidavits  are  produced 
to  show  a  continuation  of  the  defendant's  malice,  the  court  has 
thought  it  reasonable  to  allow  the  defendant  an  opportunity  of  an- 
swering  them,  since  it  cannot  be  supposed  that  be  comes  prepared 
to  answer  (o)  that  which  is  not  contained  in  the  indictment. 

With  respect  to  the  order  observed  in  reading  affidavits  : 

When  a  defendant  is  brought  up  to  receive  judgment  after  cou- 
viction  for  a  libel,  his  affidavits  (/?)  are  first  read,  and  then  the 
prosecutor's:  after  which,  the  defendant's  counsel' are  first  heard, 
and  then  the  |  or's. 

When  the  defendant  is  brought  up  on  judgment  by  default,  the 
prosecutor's  affidavits  are  first  read,  and  then  the  defendant's  :  after 
which  the  counsel  for  the  prosecution  arc  heard,  and  then  the  coun- 
sel for  (ry)  the  defendant. 

Where  there  are  no  affidavits,  the  defendant's  counsel  always  be- 
gin ;  where  judgment  is  by  default,  and  there  arc  affida- 
vits for  the  defendant,  *but  none  for  the  prosecution,  the  [ 
defendant's  counsel  begin  (/). 

Of  the  punishment. 

No  offence  seems  to  have. been  visited  with  punishment  so  varied 
in  species  and  degree,  as  that  which  is  the  subject  of  the  foregoing 
treatise  ;  a  striking  proof  how  difficult  it  is  to  estimate  its  evil  cou- 
sequenci  -.  and  of  the  different  conceptions  which,  in  different  com- 
munities, have  been  entertained  of  their  magnitude. 

The  history  n   countries  exhibits  the  penalties    for  this 

crime    in  every    gradation,  from   the    infliction  ( 5 )   of  death   to  the 

amounts  to  a  justification;  and  it  Iris  at-  port,  receive  any  evidence  of  matter  which 

ways  been  holden,  that  the  matter  of  a  li-  did  m>t  appear  at  the  trial. 

bet  cannot  be  given  in   evidei                    of  (u)  R.  v.  fYihon,  I  T.  B 

justification,  because,  if  the                  rged  (c)  II).  and  R.  v.  Archer,  -  T.  It.  2 

with   any   crime  be  guilty,  he  ought  to  be  (/<)   R.  Mich.  29  G.  III. 

proceeds  1   against    in  a  legal  way,  and  not  4th  edit,  and  R.  v.  Bunts,  2  T.  B 

reflected  on  in  this   manner.     Ami  after-  (g)  R.  Mich.  29  G.  IIL  Tidd'i 

ward?,  (Tr.  18  and  14  G.  II.)   the  I  2  C.  It.  C83. 

d  not  permit  an  afiid.i-  (r)   Ji.  v.  Finiierty,  llil.  T.  1811. 

■vitof  this  matter  to  be  read  in  mitigation  (s)  Although  the  author  of  the  Libellna 

of  the  fine,  as   they   would  not,  on  the  re"  Famosus   was    puuishable    capitally,    qu. 


367  CRIMINAL  DIVISION. 

bleeding  of  the  offending  (/)  organ  :  even  in  this  it  has  been  pun- 
ished with  very  different  degrees  of  severity,  and  the  history  of  the 
Star  Chamber  records  sentences  upon  libellers  whose  rigor  can 
scarcely  be  exceeded :  thus  Wrennura,  for  traducing  and  scandaliz- 
ing t.he  Lord  Chancellor  Bacon,  in  a  book  delivered  to 
[  *368  ]  the  king,  was  sentenced  by  that  *court  to  be  perpetually 
imprisoned,  to  pay  a  fine  of  £1000,  to  be  twice  pilloried, 
and  to  lose  both  his  ears.  Leighton,  for  his  publication,  intituled 
"An  appeal  to  Parliament,  or  Sion's  Plea  against  Prelacy,"  was 
sentenced  to  pay  a  fine  of  £10,000,  to  be  whipt  at  the  pillory 
twice,  to  lose  both  his  ears,  to  have  his  nose  slit  and  face  branded, 
and  to  be  imprisoned  in  the  Fleet  during-  life  (w). 

One  of  the  earliest  instances  in  which  a  libeller  was  sentenced  to 
the  pillory  at  common  law,  appears  to  have  been  that  of  Hugh 
Baker,  who,  in  the  fourth  year  of  Elizabeth,  was,  for  publishing  a 
libel  upon  some  of  the  inhabitants  of  Chertsey,  sentenced  to  impris- 
onment, pillory,  and  to  find  security  for  his  good  (x)  behavior. 
Since'  that  period,  this  mode  of  punishment  at  common  law  lias  not 
been  unusual,  but  has  seldom  been  inflicted  in  modern  times,  except 
in  cases  marked  by  some  peculiar  atrocity,  and  has  generally  been 
reserved  for  the  more  signal  disgrace  of  those  who  have  been  con- 
victed of  disseminating  profane  or  obscene  libels.  And  now  by  the 
provisions  of  the  late  statute  56  G.  III.  c.  138,  this 
[  *369  ]  mode  of  punishment,  in  the  case  of  libel,  is  *wholly  ex- 
cluded. As  a  misdemeanor,  at  common  law,  the  offence 
is  of  course  punishable  by  fine  and  imprisonment,  at  the  discretion 
of  the  court,  after  a  full  consideration  of  all  the  circumstances,  tend- 
ing either  to  extenuate  or  aggravate  the  guilt  of  the  offender.  In 
addition  to  this,  it  is  frequently  deemed  proper  to  impose  upon  the 
defendant  the  condition  of  finding  security  for  his  good  behavior, 
for  a  limited  term,  by  which  expedient  the  court  are  enabled  to  ex- 
tend an  humane  indulgence  to  the  offender,  in  respect  of  the  dura- 
tion of  his  imprisonment,  without  compromising  their  first  and  great 
duty  to  the  public,  the  providing  for  its  future  security. 

whether  the  offence  was  generally  so  pun-  um  "  was  to  be  punished   by  the  cutting 

ishable  by  the  law  of  tbe  Twelve  Tables,  out  of  the  tongue,  subject   to    redemption, 

SeeTrel.  dis.  juxta   capitis   testimationeru.     Wilk.   Leg. 

(0  According  to  Sir  E.  Coke,  tbe  Lydi-  Ad.  Sax.  41. 
ans  bled  the  slanderer  in  the  tongue,  and         (u)  6  C.  1.  1631.    See  also  the  cases  of 

the  listener  in  the  ear,  12  R.  35.     By  the  Prynne,  Burton,  Bustwick,  &c. 
laws  of  Alfred,  the  «'  Publicum  mendaci-        (x)  3  Ins.  220. 


JUDGMENT. 


369 


By  the  st.  CO  G.  HI.  and  1  O.   IV.  c.  8,  intitlued,  An  Act  for 
the  more  effectual  prevention  of  Blasphemous  and  Seditions  Libels, 
provision  is  made  for  enabling  the  judge  or  court,  after  verdict  o* 
judgment  by  default,  to  order  all  copies  of  such  libel  in  the  p  i 
sion  of  the  defendant  to  be  seized  (#).     By  sec.  2.  such 
(c)  copies  arc 'to  be  restored, in  case  the  judgment  bear-    [ 
rested  or  reversed.     The  fourth  section  (a)  subjects  ade- 


(y)  "Whereas  it  is  expedient  to  make 
more  effectual  provision  for  the  punishment 
of  blasphemous  and  seditious  libi 

i  that,  from  and  after  the  passing  of 

this  act,  in  every  case  in  which  any  verdict 
or  judgment  by  default  shall  be  had 
against  any  person  for  composing,  print- 
ing, or  publishing  any  blasphemous  libel 
or  any  seditious  libel  tending  to  bring  into 
hatred  or  contempt  the  person  of  his 
Majesty,  his  heirs,  or  successors,  or  the 
Regent,  or  the  government  and  constitu- 
tion of  the  United  Kingdom  as  by  law  es- 
tablished, or  either  House  of  Parliament, 
or  to  excite  his  Majesty's  subjects  to  at- 
tempt the  alteration  of  any  matter  in 
church  or  state  as  by  law  established,  oth- 
erwise than  by  lawful  means;  it  shall  be 
lawful  for  the  judge  or  the  court,  before 
whom  or  in  which  such  verdict  shall  have 
been  given,  or  the  court  in  which  such 
nt  by  default  shall  be  had,  to  make 
an  order  for  the  seizure  and  carrying  away, 
and  detaining  in  safe  custody,  in  such  man- 
ner as  shall  be  directed  in  such  order,  till 
copies  of  the  libel  which  Bhall  be  in  the 
possession  of  the  person  against  whi 
verdict  or  judgment  Bhall  have  been  had, 
or  in  th 

mimed  in  the  order  for  his  use;  evidence 
upon  oath  having  been  previously 
to  the  satisfaction  of  such  court  or  judge, 
that  a  copy  or  copies  of  the  said  libel  is  or 
are  in  the  possession  of  such  other  person 
for  the  use  of  the  person  against  whom 
such  verdict  or  judgment  shall  have  been 
had  as  aforesaid ;  ami,  in  every  such  caso 
it  shall  be  lawful  for  any  justice  of  the 
peace,  or  for  any  constable  or  other  peace 
officer,  acting  under  any  such  order;  or 
for  any  person  or  persons  acting  with  or  in 
aid  of  any  such  justice  of  the  peace,   con- 

Vol.  II.  52 


stable,  or  other  peace  officer,  to  search  for 
any  copies  of  such  libel  in  any  house, 
iing,  or  other  place  whatsoever,  be- 
longing to  the  person  agaii  any 
such  verdict  or  judgment  shall  have  been 
had,  or  of  any  other  person  so  named,  in 
whose  possession  any  copies  of  such  libel, 
belonging  to  the  linst  whom  any 
such  verdict  or  judgment  shall  have  been 
had,  shall  be,  and  in  case  admission  shall 
be  refused  or  not  obtained,  within  a  rea- 
sonable time  after  it  shall  have 
been  first  *demanded,  to  enter  [  *GT  1  ] 
by  force,  by  day,  into  any  such 
house,  building,  or  place  whatsoever,  and 
to  carry  aw  ay  all  copies  of  the  libel  there 
found,  and  to  detain  the  same  in  safe  cus- 
tody until  the  same  shall  be  restored  under 
the  provisions  of  this  act,  or  disposed  of 
according  to  any  further  order  relating 
thereto." 

(;)  Sect.  2.  "  That  if,  in  any  such  case 
as  aforesaid,  judgment  shall  be  arrested, 
or  if,  after  judgment  shall  have  been  en- 
t  red,  the  same  shall  be  reversed  upon  any 
writ  of  error;  all  copies  SO  seized  s'lall  be 
forthwith  returned  to  the  person  or  per- 
sons, from  whom  the  same  shall  have  been 
ken  as  aforesaid,  free  from  all  charge 
and  expense,  and  without  the  payment  of 
any  fees  whatever;  and  in  every  case  in 
which  final  judgment  shall  be  entered  upon 

the  verdict  so  found  against  the  person  or 
persons  charged  with  having  oomj  -  i. 
printed,  or  published  such  libel;  then  all 
copies  so  seized  shall  be  disposed  of  «s  the 
court  in  which  such  judgment  shall  be 
given,  shall  order  and  direct." 

■  t.  1.  •■  An  I  be  it  further  enacted, 
that  if  any  person  shall,  after  the  pissing 
of  this  act,  be  le  I  having 

composed,  printed,  or  published  any  bias- 


371 


CRIMINAL  DIVISION. 


fendant,  in  respect  of  a  second  conviction  to  such  punishment  as 
may  be  inflicted  for  high  misdemeanors,  or  to  banishment  from  the 
King's  dominions. 


phemous  libel,  or  any  such  seditious  libel 
as  aforesaid,  and  shall  after  being  so  con- 
victed offend  a  second  time,  and  be  thereof 
legally  convicted  before  any  commission  of 
Oyer  and  Terminer,  or  gaol  delivery,  or  in 
his  Majesty's  Court  of  King's  Bench,  such 
person  may,  on  such  second  conviction,  be 
adjudged,  at  the  discretion  of  the  court, 
either  to  suffer  such  punishment  as  may 
now  by  law  be  inflicted  in  cases  of  high 
misdemeanor,  or  to  be  banished  from  the 
United  Kingdom,  and  all  other  parts  of 
his  Majesty's  dominions  for  such  term  of 
years  as  the  court  in  which  such  convic- 
tion shall  take  place  shall  order." 

Sect.  5.  "  And  be  it  further  enacted, 
that  in  case  any  person  so  sentenced  and 
ordered  to  be  banished  as  aforesaid,  shall 
not  depart  from  this  United  Kingdom 
within  30  days"  after  the  pronouncing  of 
such  sentence  and  order  as  afore- 
[  *37'2  ]  said,  for  the  *purpose  of  going 
into  such  banishment  as  afore- 
said, it  shall  and  may  be  lawful  to  and 
for  his  Majesty  to  convey  such  person  to 
such  parts  out  of  the  dominions  of  his 
said  Majesty,  as  his  Majesty  by  and  with 
the  advice  of  his  privy  council  shall  di- 
rect." 

Sect.  6.  "  And  be  it  further  enacted, 
that  if  any  offender  who  shall  be  so  ordered 
by  any  such  court  as  aforesaid,  to  be 
banished  in  the  manner  aforesaid,  shall, 
after  the  end  of  forty  days  from  the  time 
such  sentence  or  order  hath  been  pro- 
nounced, be  at  large  within  any  part  of 
the  United  Kingdom,  or  any  other  part 
of  his  Majesty's  dominions,  without  some 


lawful  cause,  before  the  expiration  of  the 
term   for  which   such  offender  shall  be  so 
ordered  to  be  banished  as  aforesaid,  every 
such  offender  being  so  at  large  as  afore- 
said, being  thereof    lawfully    convicted, 
shall  be   transported  to  such  place  as  shall 
be  appointed   by  his  Majesty  for  any  term 
not  exceeding   fourteen  years;    and  such 
offender  may  be  tried  before  any  Justice  of 
Assize,  Oyer  and  Terminer,  Great  Sessions, 
or  Gaol   Delivery,  for  the  county,  city,  lib- 
erty, borough,  or  place,  where  such  offen- 
der shall  be  apprehended   and  taken,  or 
where  he  or  she  was  sentenced  to  banish- 
ment; and  the  clerk  of  assize,  clerk  of  the 
peace,  or  other  clerk  or  officer  of  the  court, 
having   the  custody  of  the  records   where 
such  order  of  banishment  shall  have  been 
made,  shall,  when   thereunto   required  on 
his    Majesty's  behalf,  make  out  and  give  a 
certificate  in  writing,  signed   by  him,  con- 
taining  the  effect  and  substance,  omitting 
the    formal  part  of  every  indictment   and 
conviction  of  such  offender,  and  of  the  or- 
der for  his  or  her  banishment  to  the  Jus- 
tices of  Assize,  Oyer  and  Terminer,  Great 
Sessions,  or  Gaol  Delivery,  where  such  of- 
fender shall  be  indicted ;  for  which  certifi- 
cate six  shillings  and  eight  pence  and  no 
more   shall  be  paid, and  which  certificate 
shall  be  sufficient  proof  of  conviction  and 
order   for  banishment  of  any  such  offend- 
er." 

By  the  7th  section,  the  certificate  of  the 
clerk  of  the  peace,  clerk  of  assize,  or  other 
officer  of  the  court,  having  the  custody  of 
the  records,  &c.  shall  be  sufficient  proof  of 
the  conviction  of  such  offender. 


•PRECEDENTS 


1.  Declaration  by  Bill  in  the  Kings  Bench  Jar   Words  of  Felony. 

Middlesex  (a)  to    wit.    A.  B.  the  plaintiff(ft)   in   this   suit, 
complains  of  C.  D.  (c)  the  defendant  in  this  suit,  being 
in  the  custody  of  the  marshal  of  the   Marshalsea  of  our    [  *37:»  ] 
Lord  the  now  King  before  the  King  himself  of  a  plea  of 
trespass  on  the  case,  <fcc. 

(A)  For  thai  whereas  (d)  the  said  plaintiff  is  a  good,  honest, 
true,  and  faithful  subject  of  the  realm,  and  as  such  hath  always  be- 
haved and  conducted  himself,  and  until  the  committing  of  the  griev- 
ances hereinafter  mentioned  was  always  reputed  and  esteemed  to  bo 
a  person  of  good  name,  fame,  and  credit,  to  wit,  at,  <fcc.  (B)  And 
whereas  also  the  said  plaintiff  hath  never  been  guilty  (e)  nor  until 
the  commission  of  the  said  grievances  been  suspected  to  have  been 
guilty  of  the  felonies  (or  misdemeanors  as  the  case  may  be)  and  of- 
fences hereinafter  mentioned  to  have  been  charged  upon  and  imput- 
ed to  him,  the  said  plaintiff,  or  any  other  such  crimes  (or 
misdemeanors)  or  oftenccs,  *by  means  whereof  he,  the  [  *3T4  ] 
said  plaintiff,  before  the  committing  of  the  said  griev- 
ances, had  deservedly  obtained  the  good  opinion  and  credit  of  all 
the  good  and  worthy  subjects  of  the  realm  to  whom  he  was  known, 
to  wit,  at,  .Vc.  (C). 

Yet(/)  the  said  defendant  well  knowing  the  premises  but  con- 

(a)  The  venue  ia  transitory.    See  1  T.  prove  the  truth.    See  2  Wilfl.  147,  supra 

R%  671,  647.     Supra  vol.  I.  842.    See  also  vol.    I.    484,    485. — Hooker   v.    Tucker, 

ib.  as  to  a  change  of  venue.  Holt's   H.   89.     Bendish  v.   Lindsay,  11 

(h)  As  to  the  joinder  of    plaintiffs,  sec  Mod.  194. 

vol.  I.  847.  (/)  Where  extrinsic  averments  arees- 

(c)  As  to  the  joinder  of  defendants,  see  Bentialof  bets  in  relation   to  which  the 

vol.  L  364.  words  or  lil>cl  are    actionable,   they  arc 

((/)    This  genera]  inducement  of  good  usually  introduced  immediately  before  this 

character  where  the  Blander  involves  an  averment    Sec  the  next  precedent — As  to 

imputation  on  character,  is  usual  but  on-  the  necessity  for  such  averments,  see  voL  1. 

necessary,  for  the  law   presumes  against  p.  891. 

misconduct    until   the    contrary  he  duly  As  to  such  averments  great  caution  and 

proved;  and  see  1   Lev.  197.     Styles   218.  discretion   are   requisite;  to  introduce  ex- 

Starkie  on  Evidence,  tit.  Presumptii  a.  trinsk  hots  unnecessarily  may  be  prejudi- 

(c)  This  exculpatory  averment  though  cial  cither  in  imposing  the  burthen  of  un- 
usual, does  not  seem  to  be  essential,  es-  necessary  proof  on  the  plaintiff,  or  in  re- 
peoially  as  the  charge  is  afterwards  alleged  lievingthe  defendant  from  the  allegation 
to  have  been  falsely  made  :  if  it  were  truly  and  proof  of  th:it  which  is  essentia]  to  his 
made  it  lies  on  the  defendant  to  allege  and  defeuce.     This  is  not  all :  it  is  often  matter 


374  APPENDIX. 

triving  and  maliciously  intending  (g")  to  injure  the  said  plaintiff  in 
his  good  name,  fame,  and  credit,  and  to  bring  him  into  public  scan- 
dal, infamy,  and  disgrace,  and  to  cause  it  to  be  suspected  and  be- 
lieved that  he  was  guilty  of  the  felonies  (or  misdemeanors  as  the 
case  may  be}  and  offences  hereinafter  mentioned  to  have  been  im- 
puted to  him  by  the  said  defendant,  and  to  subject  him  to  the  pains 
and  penalties  by  law  provided  against  persons  guilty  thereof,  and  to 
vex,  harass,  oppress,  and  ruin  him,  the  said  plaintiff,  heretofore,  to 
wit,  on,  &c.  at,  &c.(A)  in  a  certain  discourse  which  he  the  said  de- 
fendant, then  and  there  had  in  the  presence  and  hearing  of  divers 
good  and  worthy  subjects  (i)   of  the  realm,  of  and  concerning  the 

said  plaintiff  (&)  in  the  presence  and  hearing  of  the  said 
[  *375  ]    *last-mentioned  subjects  falsely  and  maliciously  spoke  and 

published  (/)  of  and  concerning  the  said  plaintiff  (m) 
the  several  false,  scandalous,  malicious,  and  defamatory  words  (w) 
following,  that  is  to  say.  He  (o)  (meaning  the  said  plaintiff)  is  a 
thief.  He  (meaning  the  said  plaintiff)  stole  a  horse.  I  can  prove 
him  (meaning  the  said  plaintiff)  to  be  a  thief;  he  (meaning  the  said 
plaintiff)  ought  to  have  been  hanged  many  years  ago  (/?)• 
2nd  Count — For  Words  spoken  to  the  Plaintiff. 
And  for  that  whereas  also  the  said  defendant  contriving  and 
maliciously  intending  as  aforesaid,  afterwards,  to  wit,  on,  &c.  at, 
&c.  in  a  certain  discourse  which  he  the  said  defendant  then  and 
there  had  with  the  said  plaintiff,  in  the  presence  and  hearing  of 
divers  other  good  and  worthy  subjects  of  this  realm,  of  and  concern- 
ing the  said  plaintiff,  falsely  and  maliciously'  spoke  and  published 
of  and  concerning  the  said  plaintiff  (cf)  in  the  presence  and  hear- 

of  policy,  independent   of   the   immediate  (/c)  As  to  the  necessity  for  a  colloquium 
object  of  the  pleader,  to  set  forth  a  good  and  its  office,  see  vol.  I.  363. 
cause   of  action,  to   introduce  allegations  (/)  As  to  the  necessity  for  this   allega- 
with  the  collateral   view  of  allowing   the  tion,  see  vol.  I.  438,  et  seq. 
plaintiff  to  go  into  evidence  from  which  he  (m)  As  to  this  allegation,  see  vol.  1.  383, 
would    otherwise   be   excluded.     It  some-  384,  where   the  words   were  spoken  of  a 
times   happens  that  extrinsic  facts  of  little  third  person,  this    allegation   is   said  to  be 
importance  to  the  mere  legal  cause  of  ac-  necessary  though  a  colloquium  be  laid,  but 
tion  are  of  great  importance  with  a  view  where  the  words  were  spoken  to  the  plain- 
to  the  introduction  of  such  evidence  as  is  tiff  himself,  and  there  is  an  innuendo  of  the 
likely   to   influence  a   jury;    care  should,  plaintiff,  the   omission  of    this  allegation 
however,  be  taken  to  introduce  other  counts  would  not  be  material. — lb. 
strictly  confined   to  the  legal  and  technical  (n)  As  to  the  necessity   for  stating  the 
cause  of  action.  words   correctly   and   the  consequences  of 

(g)  As  to  the  necessity  for  an   averment  variance,  see  vol.  1.  369,  et  seq. 

of  malice,  see  vol.  I.  433,  and  the  authori-  (oj  As  to  the  nature  and  office  of  an  in- 

ties  there  cited.  nuendo,  see  vol.  I.  418. 

(A)  The  precise  day  or  place  is  not  ma-  (p)  Where  the  words   themselves  mani- 

terial.  festly  import  a  charge  of  a  specific  crime, 

(t)  As  to  these  allegations  see  vol.  I.  p.  it  is  unnecessary  to  introduce  any  innuendo 

360.     It  seems  to  be  sufficient   to  allege  as  to   their   meaning,   see   vol.    I.  428,  9. 

that  the  words  were  spoken  in  the  presence  Peake  v.  Oldham,  Cowp.  275.     But   such 

of   divers  persons   without    alleging  that  an  innuendo   that  the   defendant   thereby 

those    persons    heard   or   understood   the  meant   to   charge   the    specific    offence  of 

words,  for  that  will  be   presumed   till   the  murder  or  larceny,  would   not   vitiate   the 

contrary  be  shown,  vol.  I.  360.     Secus,  it  declaration  where  such  an  intention  could 

seems,  where  the  words  were  spoken  in  a  be  collected  from  the  words. — lb. 

foreign  language.     lb.  361.  (?)  Supra  note    (i)    and  vol.  I.  p.  360. 


PRECEDENTS— DECLARATIONS.        7 

ingofthc  said  last-mentioned  subjects,  the  several  false,  scandal- 
ous, malicious,  and  defamatory  words  following,  that  is  to  Bay,  You 
(meaning   the    said   plaintiff)    are  a  thief  (r).      You 
(meaning  the  said  plaintiff)  stole  a  horse  l  (mean-    [  '  " 

ing  the  said  plaintiff)  ought  to  be  hanged.     I  can  i>rove 
you  (meaning  the  said  plaintiff)  a  thief,  and  it  is  in  my  power  to 
hang  you  (  meaning  the  said  plaintiff  ).     Whereby  the  said  plaintiff 

hath  ' n  and  is  greatly  injured  in  his  aforesaid  good  name,  fame, 

and  credit,  and  brought  into  public  scandal,  infamy,  and  disgrace, 
with  and  amongst  all  his  neighbors  and  other  good  and  worthy 
subjects  of  the  realm,  insomuch  thai  divers  of  those  neighbors  and 
subjects  have  on  occasion  of  the  committing  of  the  Baid  grie^ 
from  thence  hitherto  Buspected  and  believed,  and  -till  do  suspect 
and  believe  the  said  plaintiff  to  be  guilty  of  the  felonies  (or  mis- 
demeanors as  the  case  maybe)  and  offences  hereinbefore  mentioned 
to  have  been  imputed  to  the  said  plaintiff,  and  have  from  thence 
hitherto  by  reason  thereof  wholly  refused  and  still  do  refuse  to 
have  any  dealing  or  communication  with  him  the  said  plaintiff; 
and  the  said  plaintiff  hath  been  and  is,  by  reason  of  the  premises, 
greatly  injured  and  damn i lied  (s),  to  wit,  at,  <£c. 


2.  Declaration  against  C.  D.  for  charging  A.  B.  with  Perjury  in 
giving  Evidence  on  the  Trial  of  a  Cause. 

Slate  the  general  inducement  of  good  character  as  in  Precedent 
1,  from  {A)  to  (  C)  and  then  proceed  as  follows  : 

And  whereas  a  certain  issue  (or  certain  issues  according  to  the 

fact)  joined  between  E.  F.  and  G.  H.  in  a  plea  of in  the  court  of 

our  said  Lord  the  King  before  the  King  himself,  to  wit,  at  West- 
minster, was  (or  were)  duly  tried  at  the  assizes  held  in  and  for 
the  county  of at in  the  said  county  of on,  Ac  by  a  cer- 
tain jury  of  that  county,  in  that  behalf,  before the  Justices  of 

our -aid  Lord  the  King  assigned  to  take  the  assizes  in  the 

said  county  of (*).     And  the  said  A.   B.  at  the    [  *377  1 

said  trial  was  then  and  there  duly  sworn  before  the  said 
Justices  at  the  said  assizes,  and  was  then  and  there  examined  and 
gave  his  evidence  as  a  witness  upon  the  said  trial  (/>.  yel  the  said 
C.  D.  well  knowing  the  premises,  luit  contriving  and  maliciously  in- 
tending to  injure  the  said  A.  15.  in  his  said  good  name,  fume  and 
character,  and  to  bring  him  into  public  scandal,  infamy,  and  disgr 

Where  the  words  were  spoken  lo  the  plain-  concisely    that    at    the  assises  held  on,  &c. 

tiff  himself,  a  colloquium  and  innuendo  are    at,  &o.  in  and   for  the  oounty  of ,  ■ 

sufficient  without  this  further  averment.  certain  cause    oame  on  to  be  trii 

(r)    As  to  the  aotionable  meaning  of  the  jury  in  that  behalf  duly  t  iken,  wherein  one 

terms,  see  vol.  1.  p.  99.  M   N.  wis   the  plaintiff,  and  one  0.  P.  the 

(s)  Where  the  plaintiff  has  suffered  anj  defendant. 

special  damage,  SO.  in  respect  of  which  he  (/)    See  in  general  as  to  the  necessity  t'^r 

olaims  compensation,  it  ought  to  leof  alleging   extrinsic   foots.  voL  L 

ly  alleged,  see  vol.  I.  489,  p.  891. 

(s)  It  would  be  sufficieut   to  aver  more 

52* 


377  APPENDIX. 

and  to  cause  it  to  be  suspected  and  believed  that  he  was  guilty  of 
perjury,  and  to  subject  him  to  the  pains  and  penalties  by  law  pro- 
vided against  persons  guilty  thereof,  and  to  vex,  harass,  oppress, 
and  ruin  him  the  said  plaintiff,  heretofore  to  wit,  on,  &c.  at,  &c.  in  a 
certain  discourse  which  he  the  said  defendant  then  and  there  had  in 
the  presence  and  hearing  of  divers  good  and  worthy  subjects  of  the 
realm,  of  and  concerning  the  said  A.  B.,  and  of  and  concerning  (u) 
the  trial  of  the  said  issue  (or  issues),  and  the  said  evidence  so  as 
aforesaid  given  by  the  said  A.  B.  at  and  upon  the  said  trial,  he  the 
said  CD.  then  and  there  in  the  presence  and  hearing  of  the  said 
last-mentioned  subjects,  falsely  and  maliciously  spoke  and  published 
of  and  concerning  the  said  A.  B.,  and  the  said  trial,  and  the  said 
evidence  so  given  by  the  said  A.  B.  on  the  said  trial,  the  several 
false,  scandalous,  malicious,  and  defamatory  words  following,  that  is 
to  say,  He  (meaning  the  said  A.  B.)  forswore  himself  at  the  trial 
of  that  cause  (meaning  the  said  trial  above  mentioned). 

2nd  Count.. — And  for  that  the  said  C.  D.  contriving  and  intend- 
ing as  aforesaid,  afterwards  to  wit,  on,  &c.  at,  &c.  in  a  certain 
other  discourse  which  he  the  said  C.  D.  then  and  there  had  in  the 
presence  and  hearing  of  divers  other  good  and  worthy  subjects  of 
this  realm,  of  and  concerning  the  said  A.  B.,  and  of 
[  *378  ]  and  concerning  the  said  trial,  falsely  and  *maliciously 
spoke  and  published,  in  the  presence  and  hearing  of  the 
said  last  mentioned  subjects,  the  several  other  false,  scandalous, 
malicious,  and  defamatory  words  following,  of  and  concerning  the 
said  A.  B.,  and  of  and  concerning  the  said  trial,  and  of  and  con- 
cerning the  said  evidence,  so  as  aforesaid,  given  by  the  said  A.  B. 
on  the  said  trial,  that  is  to  say,  He  (meaning  the  said  A.  B.)  for- 
swore himself  at (meaning  at  the  said  trial  of  the  said  issue). 

Conclude  as  in  Precedent  1. 


3.  For   Words  imputing  Dishonesty  to  a   Tradesman  (x). 

(General  inducement  of  good  character  as  in  Precedent  1,  from 
(ii)  to  (B)  and  then  as  follows  :  ) 

And  whereas  also  the  said  plaintiff  before  and  at  the  time  of  the 
committing  of  the  said  grievances,  and  from  thence  hitherto,  hath 
used  and  exercised  and  still  uses  and  exercises  the  business  of  a 
tailor  (#),and  hath  always  conducted  himself  and  still  continues  to 
conduct  himself  with  honesty  and  integrity  in  his  said  trade  or  busi- 
ness, to  wit,  at,  &c,  and  hath  never  been  guilty  nor  until  the  com- 
mitting of  the  said  grievances  been  suspected  to  have  been  guilty  of 
any  cheating,  fraud  or  dishonesty  in  his  said  trade  or  business,  or 

(u)  As  to  the  necessity  for  this  aver-  (y)  Supra,  vol.  I.  p.  117;  and  in  general 
ment,  see  vol.  I.  p.  412.  as  to  the  mode  of  alleging  the  plaintiff  'a 

(x)  See  in  gGneral    as  to  words  actiona-    special  character,  see  vol.  I.  p.  400. 
tie  in  respect  of  special  character,  vol.  I. 
p.  117. 


PRECEDENTS— DECLARATIONS.       378 

otherwise.  By  means  whereof  the  Baid  plaintiff,  before  the  commit- 
ting of  the  Baid  grievances,  had  not  only  deservedly  obtained  the 
good  opinion,  confidence,  and  credit  of  all  his  aeighbors,  and  other 
good  and  worthy  Bnbjects  of  the  realm  to  whom  h  ay  wise 

known,  but  had  acquired  and  was  still  continuing  to  acquire  in  his 
said  trade  or  business  divers  great  profit  and  emoluments,  for  his 
maintenance  and  support,  to  wit,  at,  &c.     Yei  the  said 

iilant,  well  knowing  the  premises, but  contriving  *and     [  *379  ] 
lly  and  maliciously  intending  to  injure  the  plaintiff 
in  his  Baid  good  name,  fame,  and  credit,  and  in  his  said  trade  or 
business,  and  to  bring  him  into  public  scandal,  infamy,  and  disgrace, 
and  to  cause  it  to  be  suspected  and  believed  that  he  the  said  plain- 
tiff v  Ity  of  fraud  and  dishonesty,  and  of  cheating  and  impos- 
ing on  his  customers  in  his  said  trade  or  business,  and  to  oppress 
and  ruin  him  the  Baid  plaintiff,  heretofore,  to  wit,  ■  fee, 
in  a  certain  discourse  which  he  the  said  defendant  then  and  there 
had  of  and  concerning  the  said  trade  or  business  ( : ),  in  the  presence 
and  hearing  of  divers  good  and  worthy  subjects  of  the  realm,  false- 
ly and  maliciously  spoke  and  published  of  and  concern]  lid 
plaintiff,  in  his  said  trade  or  business,  in  the  presence  and  hearing  of 
the  last  mentioned  subjects,  the  several  false,  scandalous,  malicious, 
and  defamatory  words  following,  that  is  to  say,  Be  (meaning  the 
5  aid  plaintiff)  (set  out  the  words  with  innuendoes  (a).)     By  means 
whereof  he  the  said  plaintiff  hath  been  and  is  greatly  injured  in  his 
aforesaid  good  name  and  credit,  and  brought  into  public  scandal, 
infamy,  ami  disgrace,  with  and  amongst  all  his  neighbors  and  other 
good   and  worthy  subjects  of  this  realm,  insomuch  that  divers  of 
those  neighbors  and  subjects  have  by  reason  of  the   committing  of 
the  said  grievances  from  thence  hitherto  suspected  and  believed,  and 
still  do  suspect  and  believe  the  said  plaintiff  to  be  guilty  of  fraud 
and  dishonesty   in  his  said  trade  or  business,  and  have  by  reason 
thereof  wholly  refused  to  have  any  further  dealings  or  transactions 
with  the  said  plaintiff  in  the  way'  of  his  said  trade  or  business  or 
otherwise;  and  the  said  plaintiff  hath  been  and  is  greatly  injured 
and  damnified  in  his  said  trade  and  business  and  otherwise,  and  in 
particular  by  rea  on  of  thepremises  A.   I'...*',  lb,  and  E3.  P.,  who 
before  the  committing  of  the  -aid  grievances  had  been  and   \. 
customers  and  employers   of   the  said  plaintiff  in   his  said  trade 
or  business,  not  knowing  the  innocence  of  tin1  said  plaintiff  in  the 
premises,  have  by  reason  of  the  committing  of  the  said 
grievanc                    I  the    said    plaintiff    *to  have  been     [  *380  ] 
guilty  of  fraud  and  dishonesty  in  his  said  trade  or  busi- 
ness, and  have  wholly  refused  further  fo  retain  or  employ  the 
plaintiff  or  to  have  any  further  dealing  with  him  in  his  said  trade  or 
businesses  but  for  the  committing  of  the  Baid  grievances  they  other- 
wise would  have  done  (a),  to  wit,  at,  <fcc. 

(*)   As  to  the   necessity   for   this   aver-         (a)   As  to  the    averment  of  .hmage  and 
ment,  lee  voL  I.  p.  218.  the  neoeeaity  tor  averring  special  damage, 

(a)  See  vol.  I.  p.  41b.  tec  vol.  I.  p.  489. 


380  APPENDIX. 

4.  For  Words  of  Insolvency  spoken  of  a  Tradesman  (Jf). 

(State  the  General  inducement  of  good  character  as  in  Prece- 
dent l,from  (A)  to .  (#),  then  proceed: 

And  whereas  also  the  said  plaintiff  before  and  at  the  time  of  the 
committing  of  the  said  grievances,  and  from  thence  hitherto  hath 
used  and  exercised,  and  still  uses  and  exercises  the  trade  or  business 
of  a  silversmith  (according  to  the  fact)  and  has  always  used  and 
exercised,  and  still  uses  and  exercises  his  said  trade  or  business  with 
integrity  and  punctuality,  and  hath  always  well  and  truly  paid  and 
discharged  all  his  just  debts  and  .obligations,  and  hath  not  been,  nor 
is,  nor  until  the  committing  of  the  said  grievances  been  suspected 
to  be,  either  unable  or  unwilling  duly  and  faithfully  to  pay  and  dis- 
charge all  such  debts  and  obligations,  to  wit,  at,  &c.  By  means 
whereof  the  said  plaintiff,  before  the  committing  of  the  said  griev- 
ances, had  not  only  deservedly  obtained  the  good  opinion,  confidence, 
and  credit  of  all  his  neighbors  and  other  good  and  worthy  subjects 
of  the  realm  to  whom  he  was  in  any  wise  known,  but  had  acquired, 
and  was  still  continuing  to  acquire  in  his  said  trade  or  business 
divers  large  profits  and  emoluments,  to  wit,  at,  &c.  Yet  the  said 
defendant  well  knowing  the  premises,  but  contriving  and  wickedly 
and  maliciously  intending  to  injure  the  said  plaintiff  in  his  said  good 

name,  fame,  and  credit,  and  to  bring  him  into  public  scan- 
[  *381  ]   dal,  infamy,  and  disgrace,  and  to  cause  it  to  be  *suspect- 

ed  and  believed  that  he  the  said  plaintiff  was  in  poor  and 
indigent  circumstances,  and  incapable  of  paying  and  discharging 
his  just  debts  and  obligations,  and  to  oppress  and  ruin  him  the  said 
plaintiff,  heretofore,  to  wit,  on  etc.,  at,  &c,  in  a  certain  discourse 
which  he  the  said  defendant  then  and  there  had  of  and  concerning 
the  said  plaintiff  in  his  said  trade  or  business,  falsely  and  maliciously 
spoke  and  published  of  and  concerning  the  said  plaintiff  in  his  said 
trade  or  business,  the  several  false,  scandalous,  malicious,  and  de- 
famatory words  following,  that  is  to  say,  He  (meaning  the  said 
plaintiff)  owes  more  money  than  he  is  worth.  He  (meaning  the 
said  plaintiff)  is  run  away.  He  (meaning  the  said  plaintiff)  is 
broke. 

By  means  whereof  he  the  said  plaintiff  hath  been,  and  is  greatly 
injured  in  his  aforesaid  good  name  and  credit,  and  brought  into 
public  scandal,  infamy,  and  disgrace,  with  and  amongst  all  his  neigh- 
bors and  other  good  and  worthy  subjects  of  the  realm,  insomuch 
that  divers  of  those  neighbors  and  subjects  have,  by  reason  of  the 
committing  of  the  said  grievances,  from  thence  hitherto  suspected 
and  believed,  and  stiirdo  suspect  and  believe  the  said  plaintiff  to 
be  insolvent  and  incapable  of  paying  and  discharging  his  just  debts, 
and  have  by  reason  thereof  wholly  refused  to  have  any  further  deal- 
ings or  transactions  with  the  said  plaintiff  in  the  way  of  his  trade 

(6)  See  in  general  as  to  words  of  insolvency,  vol.  I.  p.  127 — 8. 


PRECEDENTS— DECLARATIONS.       381 

or  otherwise  ;  and  the  said  plaintiff  hath  been  and  is  greatly  injured 
and  damnified  in  his  said  trade  and  business  and  otherwise,  to  wit, 

at  Arc. 


5.  For  a  Libel  against  an  Attorney. 

(Genera!  inducement  of  g-ootl  character  as  in   Precedent  \.from 
(A)  to  (Z>)  and  then  as  follows:) 

And  for  that  whereas  also  the  Baid  A.  B.  for  a  long  time  before 
the  composing  and  publishing  of  the  false,  scandalous,  malicious, 
and  defamatory  libel,  by  tl  C.  D.  hereinafter  mentioned,  had 

been,  and  was,  and  still  is  an  attorney  (c)  of  the  court  of 
our  said  Lord  the  'King  before  the  King  himself,  and  also    [  '382  ] 
a  solicitor  of  the  high  court  of  Chancery,  and  had  used, 
exercised,  and  carried  on  the  profession  and  business  of  an  attorney 
and  solicitor,  with  groat  credit,  and  reputation,  and  had  acquired 
and  was  still  continuing  to  acquire  divers  Large  gains  and  profits  in 
his  said  profession  and  business,  to  wit,  at  etc.  and  whereas  also  the 
said  A.  B.  and  one  E.  P.  another  of  the  attorneys  of  the  court  of 
our  said  Lord  the  King  before  the  King  himself,  and  also  a  solicitor 
of  the  said  high  court  of  Chancery,  had,  as  such  attorneys  and  soli- 
citors, been  concerned  in  the  prosecution  of  a  certain  commission  of 
bankruptcy  against  the  said  C.  D.,  and  in  divers  proceedings  and 
disputes  concerning  his  estate  and  effects,  and  had  always  behaved 
and  conducted  themselves  therein  with  skill,  care,  judgment,  and 
integrity,  to  wit  at,  &c.  aforesaid.     Yet  the  said  C.  I).,  well  know- 
ing the  premises,  but  contriving,  and  falsely  and  fraudulently  intend- 
ing, to  injure  the  said  A.  B.  in  his  credit  and  reputation  aforesaid, 
and  also  in  his  said  profession  and  business  of  attorney  and  solicitor 
as  aforesaid,  and  to  cause  it  to  be  suspected  and  believed  that  he 
the  said  A.  B.  had  conducted  himself  dishonestly,  injudiciously,  and 
improperly,  in  relation  to  the  said  commission  of  bankruptcy,  pro- 
lings  and  disputes,  and  to  vex.  harass,  oppress,  impoverish,  and 
wholly  ruin  him  the  Baid  A.  I}.,  heretofore,  to  wit,  on,  &C,  at.  &C, 
wrongfully,  maliciously,  and  injuriously  composed,  wrote,  and  pub- 
lished, and  caused  to  be  composed,  written,  and  published  (d),  a 
certain  false,  scandalous,  malicious,  and  defamatory  libel,  of  and 
concerning  the  said   A.  B.  and    E.  P.,  in  the  way  of,  and  in  respect 
to  their  profession  and  business  of  attorneys  and  solicitors,  and  of 
and  concerning  their  prosecution  of  the  Baid  commission  as  such  at- 
torneys and  solicitors,  and  their  conduct  as  such  attorneys  and  Boli- 
citors  in  such  proceedings  and  disputes  in  which  they  were  bo  con- 
cerned as  aforesaid,  under  the  said  commission  of  bankruptcy,  in  the 
form  of,  and  as  q  letter  addressed  to,  Ac  in  which  Baid  letter  was 
and  is  contained,  amongsl  others  thine-,  the  false,  scanda- 
lous, 'defamatory,  and  libellous  words  and  matters  fol-    [  '383  J 
lowing,  of  and  concerning  the   said  A.  lb    and    E2.  F.  in 

(c)  As  to  the  allegation  of  special  char-         (</)  As  to  the  averment  of  publication, 
acter,  see  vol.  I.  p.  4Ui>.  vide  supra  vol.  I.  p.  358. 


383  APPENDIX. 

the  way  of  and  in  respect  to  their  profession  and  business  of  attor 
neys  and  solicitors,  and  of  and  concerning  their  prosecution  of  the 
said  commission  as  such  attorneys  and  solicitors,  and  their  conduct 
as  such  attorneys  and  solicitors,  in  such  proceedings  and  disputes  in 
which  they  were  so  concerned  as  aforesaid,  under  the  said  commis 
sion  of  bankruptcy.  {Here  set  out  the  letter  verbatim,  with  ap- 
propriate innuendos).  By  means  of  the  composing,  writing,  and 
publishing  of  which  said  false,  scandalous,  malicious,  and  defama- 
tory libel  by  the  said  C.  D.  as  aforesaid,  the  said  A.  B.  hath  been, 
and  is  greatly  prejudiced  in  his  credit  and  reputation  aforesaid,  and 
brought  into  public  scandal,  infamy,  and  disgrace,  and  hath  been 
and  is  suspected  to  have  acted  dishonestly  and  unskilfully  in  the 
way  of  his  said  business  and  profession  of  an  attorney  and  solicitor 
and  to  have  conducted  himself  dishonestly,  injudiciously,  and  impro- 
perly, in  relation  to  the  said  commission  of  bankruptcy,  proceedings 
and  disputes,  and  has  been  greatly  vexed,  harassed,  oppressed,  and 
impoverished,  and  has  also  lost  and  been  deprived  of  divers  great 
gains  and  profits  which  would  otherwise  have  arisen  and  accrued  to 
him  in  his  said  profession  and  business,  and  hath  been,  and  is  other- 
wise much  injured  and  damnified  therein,  to  wit,  at,  &c,  to  the 
damage,  &c. 


6.  For  Words  imputing'  Ignorance  and,   Unskilful  Treatment  of  a 
Patient  to  an  Apothecary. 

{General  Inducement  of  good  character  as  in  Precedent  l,from 
(J.)  to  (5)  and  then  as  folloivs :) 

And  whereas  the  said  plaintiff  before  and  at  the  time  of  the  com- 
mitting of  the  grievances  hereinafter  mentioned,  practised  and  exer- 
cised, and  still  continues  to  practice  and  exercise  the  art  or  business 
of  an  apothecary  (e),  and  hath  always  conducted  him- 
[  *384  ]  self,  and  still  *continues  to  conduct  himself  in  the  prac- 
tice of  his  said  art  or  business  with  great  skill,  care,  and 
humanity,  in  preparing,  administering,  and  applying  wholesome  and 
proper  medicines  for  healing  and  curing  divers  subjects  of  this  realm 
of  many  diseases  and  disorders  under  which  they  respectively  labor- 
ed, by  mcans«  whereof  the  said  plaintiff,  before  the  committing  of 
the  said  grievances,  had  deservedly  obtained  and  acquired  the  good 
opinion,  esteem,  and  confidence  of  all  his  neighbors,  and  other  good 
and  worthy  subjects  of  the  realm  to  whom  he  was  in  any  wise 
known,  and  had  acquired,  and  was  still  continuing  to  acquire  divers 
great  gains  and  profits  by  the  practice  of  his  said  art  or  business, 
to  wit,  at,  &c.  And  whereas  also  (/)  the  said  plaintiff  whilst  he 
so  practiced  and  exercised  his  said  art  or  business  and  before  the 
committing  of  the  said  grievances,  to  wit,  on,  &c,  at  &c,  was  sent 
for  as  such  apothecary  to  attend  and  visit  in  the  way  of  his  said  art 

(c)  See  vol.  I.  p.  400.  for  and  mode  of  alleging  extrinsic   facts, 

(/)    See  in  general  as  to  the  necessity    toI.  I.  p.  391. 


PRECEDENTS— DECLARATIONS.       384 

or  business  the  child  of  one  E.  F.,  which  was  then  sick,  and  which 
before  the  committing  of  the  said  grievances  died,  and  daring  his 
attendance  on  the  said  child,  he  the  Baid  plaintiff  prepared  and 
administered  to  the  said  child  wholesome  and  proper  medicines, 
according  to  the  nature  of  the  disorder  of  the  said  child,  to  wit,  at, 
&c.     Nevertheless  the  said  defendant,  well  knowing  the  premis    , 
but  contriving  and  maliciously  intending  to  prejudice  and  injure  the 
said  plaintiff  in  his  good  name,  fame,  credit,  and  esteem,  in  his 
aforesaid  art  or  business,  and  to  cause  the  said  plaintiff  to  be  brought 
into  public  scandal,  infamy,  and  disgrace,  and  reputed  to  be  a  person 
ignorant  in  his  said  art  or  business,  on,  Ac.  at,  &c,  in  a  certain  dis- 
course which  the  said  defendant  then  and  there  had  with  diver-  BUD- 
jeets  of  this  realm,  of  and  concerning  the  said  plaint  ill',  in  his  afore- 
said art  or  business,  and  his  attendance  on  the  said  child,  and  of 
and  concerning  the   medicines  and   remedies  which  the  said  plaintiff 
had  prepared  for,  and  administered  to  the  said  child,  the 
said  defendant  falsely  and  maliciously  in  the  'presence    [  *385  ] 
and  hearing   of  those  subjects,  spoke,  proclaimed,  and 
published,  of  and  concerning  the  said  plaintiff  in  his  said  art  or 
business,  and  of  and  concerning  his  said  attendance  on   the   said 
child,  the  several  false,  scandalous,  malicious,  and  defamatory  words 
following,  that  is  to  say,  Be  (  meaning  the  said  plaintiff)  has  a  great 
deal  to  answer  for;  but  for  his  (meaning  the  said  plaintiff's)  ignor- 
ance, (meaning  ignorance  in  his  said  art  or  business)  that  child 
(meaning  the  said  child  whom  the  said  plaintiff  as  such  apothecary 
had  attended,  and  to  whom  he  had  administered  as  aforesaid)  would 
still  have  been  living.     His  (meaning  the  said  plaintiff's)  medicines 
did  the  business. 

2nd  Count. — For  (he  Words, — the  medicine  which  he  sent,  (mean- 
ing the  medicine  administered  by  the  said  plaintiff,  as  such  apothe- 
cary, to  the  said  child  of  the  said  E.  P.)  was  no  better  than  poison. 

By  means  whereof  the  said  plaintiff  is  much  prejudiced,  injured, 
and  degraded  in  his  good  name,  fame,  credit,  and  reputation,  and  is 
fallen  into  public  -vandal  and  disgrace,  and  reputed  to  be  a  person 
ignorant  in  his  said  art  or  business  of  an  apothecary,  and  divers  of 
his  friends  and  neighbors  and  other  good  and  worthy  subjects  of 
the  realm,  have  by  reason  of  the  committing  of  the  said  grievances, 
refused,  and  still  do  refuse  to  employ  the  said  plaintiff  in  his  afore- 
said art  or  business  of  an  apothecary  as  before  they  were  used  to 
do,  and  otherwise  would  have  done,  to  the  damage,  Arc. 


7.  For  Written  Slander  in  giving-  the  Character  of  a  Servant. 

(General  inducements  as  in  Precedent  l,from  (A)  to  (J5)  and 

then  as  follows  :  ) 

And  for  that  whereas  the  said  A.  B.  before  the  committing  of 
the  grievances  hereinafter  mentioned,  had  been  retained  and  em- 
ployed by  and  in  the  service  of  the  said  C.  D.  as  his  butler  and  ser- 


385  APPENDIX. 

vant,  and  in  that  capacity  bad  behaved  with  due  integrity 
[  *386  ]  *good  temper,  activity,  and  civility,  and  never  was,  or  un- 
til the  time  of  the  committing  of  such  grievances,  suspected 
to  have  been,  or  to  be  bad  tempered,  lazy,  or  impertinent,  by  means 
of  which  said  several  premises  he  the  said  A.  B.  before  the  com- 
mitting of  the  said  several  grievances  had  not  only  deservedly  ob- 
tained the  good  opinion  of  all  his  neighbors,  and  divers  other 
good  and  worthy  subjects  of  this  realm,  but  had  also  supported 
himself,  and  would  thereafter  have  supported  himself  by  his  hon- 
est, faithful;  diligent,  and  attentive  exertions  in  the  service  of  his 
masters  and  employers,  had  not  such  grievances  been  committed 
as  hereinafter  mentioned,  to  wit,  at,  &c.  And  whereas  the  said  A. 
B.  before  and  at  the  time  of  the  committing  of  such  grievances,  had 
quitted  and  left  the  service  of  the  said  CD.,  and  had  been  recom- 
mended to,  and  was  likely  to  be  retained  and  employed  by  and  in 
the  service  of  one  E.  F.,  as  footman,  for  certain  wages  to  be  there- 
for paid  to  him  the  said  A.  B.,  to  wit,  at,  &c.  Yet  the  said  0. 
D.,  well  knowing  the  premises,  but  contriving  and  maliciously  in- 
tending to  injure  the  said  A.  B.  in  his  said  character,  and  to  bring 
him  into  public  scandal,  infamy,  and  disgrace,  with  and  amongst 
all  his  neighbors,  and  other  good  and  worthy  subjects  of  this  realm, 
and  particularly  with  the  said  E.  F.,  and  to  cause  it  to  be  suspect- 
ed and  believed  that  the  said  A.  B.  was  not  fit  to  be  employed  as 
a  servant,  and  that  he  was  bad  tempered,  and  a  lazy  and  imperti- 
nent fellow,  and  thereby  to  prevent  the  said  E.  F.  from  retaining 
and  employing  him  the  said  A.  B.  in  his  service  as  he  otherwise 
might  and  would  have  done,  and  to  vex,  and  harass,  oppress,  im- 
poverish, and  wholly  ruin  him  the  said  A.  B.,  and  to  deprive  him 
of  the  means  of  supporting  himself  by  honesty  and  industrious 
means  heretofore,  to  wit,  on,  &c.,  at,  &c,  aforesaid,  wrongfully 
and  unjustly  did  compose  and  publish  a  certain  false,  scandalous, 
malicious,  and  defamatory  libel,  of  and  concerning  the  said  A.  B. 
as  such  servant,  containing,  amongst  other  things,  the  several  false, 
scandalous,  malicious,  and  defamatory  words  and  matters  following, 
of  and  concerning  the  said  A.  B.,  as  such  servant,  that 
[  *387  ]  is  to  say,  He  (meaning  the  said  *A.  B.  )  is  a  bad  tem- 
pered, lazy,  impertinent  fellow,  (thereby  then  and  there 
meaning  that  the  said  A.  B.,  was  not  a  person  fit  to  be  retained 
and  employed  in  the  capacity  of  a  servant). 

2nd  Count. — And  the  said  A.  B.  further  says  that  the  said  C. 
D.  further  contriving  and  intending  to  injure  and  damnify  the  said 
A.  B.  as  aforesaid,  afterwards,  to  wit,  on,  &c,  at,  &c.  falsely, 
wickedly,  maleciously,  wrongfully,  and  unjustly,  did  publish,  and 
cause  and  procure  to  be  published,  a  certain  other  false,  scandalous, 
malicious,  and  defamatory  libel,  of  and  concerning  the  said  A.  B. 
as  such  servant  as  aforesaid,  containing  the  several  false,  scan- 
dalous, malicious,  and  defamatory  words  and  matters  following,  of 
and  concerning  the  said  A.  B.,  as  such  servant  as  aforesaid,  that 
is  to  say,  He  (meaning  the  said  A.  B.  )  is  a  bad  tempered,  lazy, 


PRECEDENTS— DECLARATIONS.       387 

and  impertinent  fellow,  by  means  of  the  committing  of  which  said 
grievam  id   A.    B.   hath  been  and  is  greatly  injured  in   his 

said  good  character,  and  broughl  into  public  scandal,  infamy,  and 
>,  with  and  amongsl  all  bis  neighbors  and  other  good  and 
worthy  subjects  of  the  realm  to  whom  be  was  in  any  wise  known. 
insomuch  that  divers  Of  those  neighbors  and  subjects,  and  in   , 
ticnlar  tho  Baid  E.   P.,  to  whom  the  good  temper,  fidelity,  actii 
and  civility  of  the  Baid  A.   B.  in  the  capacity  of  a  Bervant  or  oth- 
erwise wore  unknown,  have  on  occasion  of  the  committing  of  the 
said  grievances,  from  thence  hitherto,  suspected  and  believed, 
the  said  E.   P.  still  doth  suspect  and  believe  the  said  A.   15.  tota 

,,  ;,,,,[  to   be  a  bad  tempered,  lazy,  and  impertinent  person,  and 
unfit  to  be  retained  or  employed  in  the  capacity  of  a  -  and 

also  by  reason  thereof,  the  said  B.  F.  afterwards,  to  wit.  on.  Arc. 
aforesaid,  at,  &c.  aforesaid,  refused  and  declined  to  retain  and  em- 
p]  iy  th  ■  said  A.  B.  in  his  service  as  a  footman  or  otherwise,  as  he 
otherwise  might  and  would  have  done,and  by  reason  thereof, he 
the  Baid  A.  B.  hath  not  only  '  ieen  deprived  of  the  support, 

-■nance,  wages,  gains,  and  emoluments  which  might  and  would 
otherwise  have  arisen  and  accrued  to  him  from  and  >n  of  his 

:  so  retained  and  employed  as  last  a  .  but 

hath  "from  thence  hitherto  remained  and  continued,  and     [  *388  ] 
still  is  out  of  employ,  deprived  of  the  opportunity  of  sup- 
porting himself  by  honest  and  industrious  means,  and  hath  been  and 
is,  by  means  of  the  said  several  premises,  otherwise  greatly  injured 
and  "damnified,  to  wit,  at,  &c.   aforesaid,  to  the  damage,  Are. 


8.   Declaration  for  Words  spoken  of  a  Magistrate  in  his  Office  (s). 
(General  averment  of  good  character  as  in  Precedent  1,  from 
(A)  to  (£). 

And  whereas  also  the  said  plaintiff  before  and  at  the  time  of  the 
committingof  the  said  grievances  by  the  said  defendant  was.  and 
from  thence  hitherto  hath  been,  and  still  is  one  of  the  Justii 
our  Lord  the  King  assigned  to  keep  the  peace  of  our  said  Lord  the 
Kin-,  in  and  lor  the  county  of and  also  to  hear  and  de- 
ne divers  felonies  and  other  misdemeanors  committed  in  the 
ty,  and  during  all  that  time  governed  and  conducted  him- 
self in  his  said  office  with  justice,  uprightness,  and  integrity,  to  wit, 
at.  &c.  Set  the  said  defendant  well  knowing  tho  premises, bul  con- 
triving and  wrongfully  and  maliciously  intending  to  injure,  prejudice, 
and  aggrieve  him  the  said  plaintiff,  so  being  such  justice  as  afore- 
said,  and  to  cause  it  to  be  suspected  and  believed  thai  he  the  said 
plaintiff,  had  acted  unjustly  and  corruptly  in  his  said  office  of  justice 
of  the  peace,  heretofore,  to  wit,  on,  Ac,  at,  &c,  in  a  certain  dis- 
course which  he  the  said  defendant  then  and   there  had  in  the  pre- 

(s)    As  to  the  right  to  maintain  tlii-  BOtion,  sec  vol.  I.  117. 

Vol.  II.  53 


388  APPENDIX. 

sence  and  hearing  of  divers  good  and  unworthy  subjects  of  the 
realm,  of  and  concerning  him  the  said  plaintiff  in  his  said  office  of 
justice,  falsely  and  maliciously  spoke  and  published  of  and  concern- 
ing the  said  plaintiff  in  his  said  office,  the  several  false,  scandal- 
ous, malicious,  and  defamatory  words  following,  that  is  to  say,  He 
(set  out  the  ivords  ivith proper  innuendoes.') 

*By  means  whereof  the  said  plaintiff  hath  been  and  is  greatly  in- 
jured, prejudiced,  and  aggrieved  in  his  said  office,  and  in 

*889  ]  his  good  name,  fame,  and  reputation,  and  divers  of  the 
good  and  worthy  subjects  of  the  realm  have  suspected 
and  believed,  and  still  do  suspect  and  believe  that  the  said  plaintiff 
hath  behaved  and  demeaned  himself  dishonestly  and  corruptly  in  his 
said  office,  and  the  said  plaintiff  hath  been  and  is  brought  into  pub- 
lic contempt,  infamy,  and  disgrace,  and  hath  been  and  is  otherwise 
greatly  injured  and  damnified,  to  wit,  at,  &c. 


9.    For    Words  imputing  Incontinence  to   an  unmarried   Woman, 
which  occasioned  special  damage  (t). 

(General  inducement  of  good  character  as  in  Precedent  l,from 
(A)  to  (B). 

And  for  that  whereas  also  the  said  plaintiff  hath  always  been  a 
virtuous,  modest,  and  chaste  subject,  and  until  the  committing  of  the 
grievances  hereinafter  mentioned  had  always  been  esteemed  to  be  of 
unblemished  reputation,  and  that  before  and  at  the  time  of  the  com- 
mitting of  the  said  grievances,  she  the  said  plaintiff  enjoyed  the  so- 
ciety and  conversation,  friendship  and  countenance  of  many  worthy 
and  estimable  subjects  of  this  realm,  to  wit,  of  A.  B.,  C.  D.,  &c. 
(naming  them)  and  divers  others,  and  lived  associated  with  them  on 
terms  of  mutual  respect,  confidence,  and  intimacy,  and  was  by  divers 
of  those  persons  (naming  them)  received  and  entertained  in  their 
respective  houses,  and  found  and  provided  by  them  respectively  with 
meat  and  drink  gratuitously,  and  without  any  price  or  sum  of  money 
whatsoever,  by  her  paid  or  payable  for  the  same,  to  the  great  reduc- 
tion of  her  necessary  expenses,  of  living  and  maintaining  herself, 
and  the  great  increase  of  her  riches,  to  wit  at,  &c.  Yet  that  the 
said  defendant,  well  knowing  the  premises,  and  envying 
[  *390  ]  the  happiness  of  the  said  plaintiff,  and  maliciously  con- 
triving and  intending  to  injure  and  ruin  her  in  her  char- 
acter, and  to  deprive  her  of  the  good  will,  society,  conversation, 
friendship,  and  commerce  of  all  her  friends,  relations,  and  acquaint- 
ances, and  to  impoverish  her,  and  deprive  her  of  all  the  benefits  and 
advantages  of  her  fortune  and  pecuniary  circumstanses,  so  by  her 

(0  See  the  case  of  More  v.  Meagher,  in    was  good,  and  the  plaintiff  below  had  judg- 
error.    Supra   vol.  I.  202.     1  Taunt.  39,    ment  [1]. 
where  it  was  held  that  such  a  declaration 


[1]  See  note  [1]  p.  202  vol.  I. 


PRECEDENTS— DECLARATIONS.  390 

received  and  receivable  as  aforesaid  heretofore,  to  wit,  on,  &c,  at, 
&c,  in  a  certain  discourse  which  he  the  said  defendant  then  and 
there  had  in  the  presence  and  hearing  of  divers  good  and  worthy 
subjects  of  this  realm,  of  and  concerning  the  said  plaintiff,  in  the 
presence  and  hearing  of  the  said  Lasl  mentioned  subjects,  falsely  ami 
malicioudy  spoke  and  published,  of  and  concerning  the  said  plaintiff, 
the  several  false,  scandalous,  malicious,  and  defamatory  words  fol- 
lowing, that  is  to  say.  ( set  out  the  works  imputing  incontinence  /<> 
the  plaintiff,  villi  innuendoes.')  By  means  of  the  Bpeaking  of  which 
several  false,  scandalous,  and  defamatory  words,  the  said  plaintiff 
hath  been,  and  is  greatly  injured  in  her  credit  and  reputation,  and 
brought  into  public  scandal,  infamy,  and  disgrace  with  and  amongst 
all  her  neighbors  and  other  good  and  worthy  subjects  of  the  realm, 
insomuch  that  the  said  last  mentioned  neighbors,  subjects,  and 
friends,  especially  the  several  persons  hereinbefore  in  that  behalf 
named,  to  wit,  the  said  A.  B.,  C.  D.,  &c.  (it),  have,  by  reason  of 
the  committing  of  the  said  grievances,  refused  to  hold  or  permit  any 
intercourse  or  society  with  her,  or  to  receive,  or  to  admit  her  into 
their  respective  houses  or  company,  or  to  find  or  provide  for  her, 
meat,  drink,  or  any  other  benefits  and  advantages,  in  any  manner 
whatsoever,  as  they  before  that  time  had  done,  and  otherwise  would 
have  continued  to  do,  whereby  the  plaintiff  hath  lost  all  those  valu- 
able benefits  and  advantages,  being  to  her  theretofore  of  great  value, 
to  wit,  of  the  value  of  1007.,  and  hath  been  and  is  greatly  reduced 
and  prejudiced  in  her  fortunes  and  pecuniary  circumstances,  and 
obliged  to  incur  a  much  greater  expense  in  her  necessary 
living,  *and  supporting  herself,  to  wit,  the  annual  amount  [  *391  ] 
of  100/.,  than  she  theretofore  had  done,  and  otherwise 
would  have  continued  to  do,  and  hath  been,  and  is  by  means  of  the 
premises,  greatly  damnified  and  impoverished,  to  wit,  at,  &c. 


10.  Declaration  for  composing-,  printing-,  and  publishing  a  libel. 

For  that  whereas  the  said  plaintiff  is  a  good,  true,  honest,  just 
and  faithful  subject  of  this  realm,  and  as  such  hath  always  behaved, 
and  conducted  himself,  and  until  the  committing  of  the  grievances 
by  the  said  defendant  as  hereinafter  mentioned,  was  always  reputed, 
esteemed,  and  accepted  by  and  amongst  all  his  neighbors  and  other 
good  and  worthy  subjects  of  this  realm,  to  whom  he  was  in  any  wise 
known,  to  be  a  person  of  good  name,  fame,  and  credit,  to  wit,  at, 
&c.      Ami  whereas  he  the  said  plaintiff  hath  never    been  guilty,  nor 

until  the  time  of  the  committing  of  the  said  grievances,  as  herein- 
after mentioned,  been  suspected  to  have  been  guilty  of  the  olTences 
and  misconduct  hereinafter  mentioned  to  have  been  imputed  to  him, 
or  of  any  such  olTences  or  misconduct.     By  means  of  which  said 

(>i)   As  to  the  necessity  of  stating  the  name3,SM  vol.  I.  p.  111.  442.     B.  N.  P.  7 
Hartley  v.  Herring,  8  T.  R.  140. 


391  APPENDIX. 

several  premises,  he  the  said  plaintiff,  before  the  committing  of  the 
said  grievances  hereinafter  mentioned,  had  deservedly  obtained  the 
good  opinion  and  credit  of  all  his  neighbors  and  other  good  and 
worthy  subjects  of  this  realm,  to  whom  he  was  known,  to  wit,  at, 
&c.  (x).  Yet  the  said  defendant,  well  knowing  the  premises,  but 
contriving,  and  wickedly  and  maliciously  intending  to  injure  him  in 
his  said  good  name,  fame,  and  credit,  and  to  bring  him  into  public 
scandal,  infamy  and  disgrace,  with  and  amongst  all  his  neighbors 
and  other  good  and  worthy  subjects  of  this  realm,  and  to 
[  *392  ]  cause  it  to  be  suspected  and  believed  by  *those  neigh- 
bors and  subjects  that  he  the  said  plaintiff  had  been  and 
was  guilty  of  the  offences  and  misconduct  hereinafter  mentioned  to 
have  been  charged  upon  and  imputed  to  him,  and  to  vex,  harass, 
and  oppress  him  the  said  plaintiff,  on,  &c.  at,  &c.  aforesaid,  falsely, 
wickedly,  and  maliciously  did  compose  (y),  print,  (;:),  and  publish, 
and  cause  (a)  and  procure  to  be  printed  and  published,  of  and  con- 
cerning the  said  A.  B.,  a  certain  false,  scandalous,  malicious,  and 
defamatory  libel,  containing  amongst  other  things  (if  part  only  be 
set  out)  in  one  part  thereof,  the  false,  scandalous,  malicious,  and 
defamatory  words  and  matters  following  (b),  of  and  concerning  (c) 
the  said  plaintiff,  that  is  to  say,  (setting-  out  the  libellous  passage 
with  apt  innuendoes,')  and  also  containing  in  another  part  thereof, 
the  several-other  false,  scandalous,  malicious,  and  defamatory  words 
and  matters  following,  of  and  concerning  the  said  plaintiff,  that  is 
to  say,  (setting-  out  another  libellous  passage  with  apt  innuendoes) 
and  also  containing  in  another  part  thereof  the  several  other  false, 
scandalous,  malicious,  and  defamatory  words,  and  matters  following, 
of  and  concerning  the  said  plaintiff,  that  is  to  say,  (setting  out  ano- 
ther libellous  passage  with  apt  innuendoes). 
[  *393  ]  Where  there  is  any  doubt  as  to  the  meaning  or  ap- 
plication of  the  libellous  matter,  it  is  usual  to  add  other 
counts,  with  suitable  variances  as  to  such  allegations. 

(x)  It  is  usual  to  introduce  in  this  part  usual  to  allege  as  follows — did  compose, 
of  the  declaration,  by  way  of  further  in-  write,  and  publish,  and  cuvse  anil  procure 
ducement,  such  extrinsic  facts,  the  aver-  to  be  written  and  published,  of  and  con- 
meat  of  which  is  essential  to  the  cause  of  cerning,  S>-c,  a  false,  scandalous,  malici- 
action.  As  to  such  averments,  see  vol.  I.  ous,  and  defamatory  libel,  $c,  and  some- 
391,  et  seq.  times  it  is  added,  in  the  form  of  a  letter  to 

(y)  The  plaintiff  on  such  a  count  may  the  plaintiff,  &c,  but  it  does  not  appear  to 

have  a  verdict  for  the  publishing,  though  be  necessary  that  the  particular  mode  or 

no  proof  be  given  of  the  composing,  writ-  form  of  writing  or  publishing  should  be  set 

ing.   or  printing,  see  vol.   II.  p.  50,  and  cut. 
Starkie  on  Evidence,  tit.  Libel.     Variance.         This  allegation,  and  cause,  6,-c.   though 

(=)  If  the  libel  has  been  published  in  a  usual,  is  wholly  superfluous;  for  in  legal 

public  newspaper,  it  is  usual  to  aver  that  consideration  a   man  does   that  which  he 

the    defendant  did    compose',    print,   and  causes  to  be  done;  an  allegation  in  the  dis- 

pvblishin  a  certain  public  nexvspaper,  $c,  junctive   would  render  the   declaration  de- 

and  not  unfrequently  the  title  of  the  news-  murrable. — Supra  vol.  I.  3G1. 
paper  is  set  out;  it  seems,  however,  to  be         (b)   As  to  the  statement  of  the  libel,  see 

sufficient  to  allege  a  printing  and  publish-  vol.  I.  366,  &c. 

ing  simply,  and  danger  of  variance  may  (c)  As  to  the  necessity  of  this  allegation, 
be°incurred  in  setting  forth  the  title  of  the  in  order  to  connect  the  libel  with  the  plain- 
newspaper,  tiff,  and  such  extrinsic   facts  as  are  previ- 

(a)  Where  the  libel  is  in  writing,  it  is  ously  stated,  see  vol.  I.  412,  et  seq. 


PRECEDENTS— DECLARATIONS.        393 

By  means  of  the  committing  of  which  Baid  Beveral  grievances  the 
said  plaintiff  bath  been  and  is  greatly  injured  in  his  good  name, 
fame,  and  credit,  and  bronghl  into  public  scandal,  infamy,  and  dis- 
grace with  and  amongsl  all  his  neighbors  and  other  good  and  worthy 
Subjects  of  this  realm  to  whom  he  was  in  any  wise  known,  insomuch 
that  divers  of  those  neighbors  and  subjects,  to  whom  the  innocence 
of  the  said  plaintiff  was  unknown,  have,  on  occasion  of  the  commit- 
ting of  the  said  -  iveral  grievances  by  the  said  defendant,  from  thence 
hitherto  suspected  and  believed,  and  -till  do  suspeel  and  believe  the 

said  A.  B.  to  have  I n  guilty  of  the  offences  and  improper  conduct 

imputed  to  him  as  aforesaid,  and  have-  by  reason  of  the  committing 
of  the  said  several  grievances  by  the  said  0.  D.,  from  thence  hith- 
erto refused,  and  still  do  refuse  to  have  any  acquaintance,  inter- 
course, or  discourse  with  the  said  plaintiff,  and  the  said  plaintiff  hath 
been,  and  is  by  means  of  the  premises,  otherwise  greatly  injured 
and  damnified,  to  wit,  at,  &c,  to  the  damage,  <fec. 


11.  Declaration  for  a  malicious  Prosecution  of  a  Charge  of  Fel- 
ony before  a  Magistrate,  and  afterwards  by  Indictment  at  the 
Sessions,  where  the  Grand  Jury  found  no  True  Bill. 

{General  inducement  of  good  character,  supra,  Precedent  1,  from 
{A)  to  {C),  and  then  proceed.) 

Yet  the  said  defendant,  well  knowing  the  premises,  but  contriv- 
ing and  maliciously  intending  to  injure  the  said  plaintiff  in  his  good 
name,  fame  and  credit,  and  to  bring  him  into  public  scandal,  infamy, 
and  disgrace,  and  to  cause  him  to  be  imprisoned  and  unjustly  pun- 
ished, and  to  impoverish,  oppress,  and  wholly  ruin  him,  heretofore, 
to  wit,  on,  &c,  at,  &c,  falsely  and  maliciously,  and  with- 
out any  reasonable  and  probable  cause  "whatever,  alleged  [  *394  ] 
and  objected  against  the  said  plaintiff,  that  he  the  said 
plaintiff  had  before  then  feloniously  stolen,  taken,  and  carried  away, 
{stale  the  particulars)  of  him  the  said  defendant ;  and  then  and 
there,  and  for  the  said  supposed  offence,  falsely  and  maliciously  and 
without  any  reasonable  or  probable  cause,  arrested,  and  caused,  and 
procured  the  said  plaintiff  to  be  arrested  by  his  body,  and  carried 
and  conveyed  him,  and  caused  and  procured  him  to  be  carried  and 
conveyed  in  custody  before  one  M.  \.,  Esq.,  then,  and  still  being 
one  of  the  justices  of  our  Lord  the  King,  in  and  for  the  said  county 
of ,  and  also  to  hear  and  determine  divers  felonies  and  tres- 
passes, and  other  misdemeanors  committed  within  the  Baid  cdunty, 
and  to  be  examined  by  and  before  the  said  M.  N..  bo  being  such 
Justice  as  aforesaid,  of,  upon,  and  for  the  said  supposed  offence,  and 
then  and  there,  falsely  and  maliciously  and  without  any  reasonable 
or  probable  cause  whatever,  caused  and  procured  the  said  M.  X.,  so 
being  such  Justice  as  aforesaid,  to  commit  the  Baid  plaintiff  into  the 
custody  of  the  keeper  of  a  prison  of  our  said  Lord  the  King,  in  the 
said  county,  to  wit,  a  certain  prison  of  our  said  Lord  the  King, 
oo 


394  APPENDIX. 

called ,  and  to  make  out  and  grant,  under  his  hand  seal,  as  such 

Justice  as  aforesaid,  a  certain  warrant  or  mandate,  directed  to  the 
said  keeper  of  the  aforesaid  prison,  or  his  deputy,  bearing  date,  on, 
&c,  whereby  the  said  Justice  commanded  (/),  authorized,  and  re- 
quired the  said  keeper  of  the  said  prison,  or  his  deputy,  to  receive 

into  his  custody  the  body  of  the  said  plaintiff,  for  further 
[  *395  ]    examination  as  to  the  said  offence  imputed  to  and  *charg- 

ed  upon  him  the  said  plaintiff  as  aforesaid,  on  Thursday 
morning  then  next,  at  ten  of  the  clock,  and  him  safely  keep  in  his 
custody  until  he  should  thence  be  discharged  by  due  course  of  law, 
to  wit,  at,  &c.  aforesaid :  and  that  the  said  defendant  also  then  and 
there  maliciously,  and  without  any  reasonable  or  probable  cause, 
caused  and  procured  the  said  plaintiff  to  be  kept  and  detained  in 
custody,  in  the  aforesaid  prison  of  our  said  Lord  the  King,  under  and 
by  virtue  of  the  aforesaid  warrant  or  mandate,  from  thence  until  and 
upon,  &c.  and  during  that  time,  and  afterwards,  on,  &c.  aforesaid, 
at,  &c,  and  before  the  aforesaid  Justice,  falsely  and  maliciously, 
and  without  any  reasonable  or  probable  cause  whatever,  again  al- 
leged and  complained  against  him  the  said  plaintiff,  that  he  the  said 
plaintiff  had  before  then  feloniously  taken  and  carried  away,  (set 
out  the  particulars}  of  him' the  said  defendant,  and  then  and  there 
falsely  and  maliciously  and  without  any  reasonable  or  probable  cause 
whatever,  caused  and  procured  the  said  M.  N.  so  being  such  Justice, 
to  make  and  grant  a  certain  other  warrant,  under  his  hand  and  seal 
as  such  Justice  as  aforesaid,  bearing  date,  &c,  and  directed  to  the 

aforesaid  keeper  of  the  said  prison,  called ,  or  his  deputy, 

whereby  he  the  said  Justice  commanded  (#•),  and  required,  and  au- 
thorized the  said  keeper,  or  his  deputy,  to  detain  in  his  custody  the 
body  of  the  said  plaintiff  so  charged  and  accused  before  him  the 
said  Justice  as  last  aforesaid,  and  him  safely  keep  in  his  custody  until 
he  should  be  discharged  by  due  course  of  law ;  and  that  the  said 
defendant  did  then  and  there  falsely  and  maliciously,  without  any 
reasonable  or  probable  cause  whatever,  cause  and  procure  the  said 
plaintiff  to  be  detained  and  kept  in  custody,  as  well  in  the  said  prison 

called. ,  as  aforesaid,  as  in  a  certain  other  prison  of  our  said 

Lord    the  now  King,  called ,  under,  and  by  virtue,  and    in 

consequence  of  the  said  last-mentioned  warrant  or  mandate,  for 
a  lono-  space  of  time,  and  until  his  discharge  hereafter  mentioned, 
to  wit,  at,  &c.  aforesaid.      And  the  said  plaintiff,  in  fact,  further 

(  f )  This  of  course  should  be  according  and   charged   on  him  the  said  plaintiff,  as 

to  the  fact.     It  does  not  appear  to  be  neces-  aforesaid,   and    maliciously,    and    without 

sary  to  set  out  the  particulars  of  such  war-  any  reasonable  or  probable   cause,  caused 

rant  to  detain  the  prisoner   foe  further  ex-  and   procured  the  said  plaintiff  to  be  kept 

amination;  it  would,  it  seems,  be  sufficient  and  detained  in  the  said  prison  there  for  a 

to  aver  that  the  defendant  maliciously  and  long  space  of  time,  to  wit,  for  the  space  of 

without  any  reasonable  or  probable  cause,     days,  and  afterwards,  to  wit  on,  &c. 

caused  and  procured  the  said  Justice  to  or-  at,  &c. 

der  that  the  said  plaintiff  should  be  de-  (</)   This  of  course  must   be  stated    ac- 

tained  and  confined  in   a  certain    prison  cording  to  the   warrant   itself,  which  must 

there,  in  order  to  his  further  examination  be  produced  and  proved. 

as  to  the  said  supposed  offence,  so  imposed 


PRECEDENTS— DECLARATIONS.        395 

saith,  that  whilsl  "he  the  Baid  plaintiff  was  bo  id  custody  [  *396  ] 

as  aforesaid,  to  wit,  at  (/*)  the  general  quarter  » 

the   peace  of  (i)  our  said   Lord  the  King,  holden  in  and  for  the 

county  of ,  at ,  on,  &c.  before  A..  B.,  Esq.,  Ac,  and  others 

their  fellows  Jut  our  Baid  Lord  the  King,  assigned  to  h 

toe  peace,  and  also  to  hear  and  determii  e  divers  felonies,  tn  - 
and  oilier  misdemeanors  in  the  Baid  county  committed,  falsely  and 
malioiously,  an  1  without  any  reasonable  or  probable  cause  whatever, 
preferred,  and  presented,  and  caused  to  be  preferred  and  presented 
to  the  juror-  of  the  Grand  Inquest  then  and  there,  to  wit,  at  the 
said  se  .-ions  sworn  and  charged  to  inquire  for  our  Lord  ti. 

and  the  body  of  the  .-aid  county  of ,  a  certain  bill  (A)  (of 

indictment)  against  the -aid  plaintiff,  by  the  name  and  description 
of,  Ac,  charging,  and  accusing,  and  purporting,  that  the  said  plain- 
tiff, on,  &c.  (set  out  the  substance  of  the  charge  I  <  J),  with  the  intent 
that  the  sane>  should  then  and  there  be  found  a  true  bill  by  the  -aid 
jurors,  which  said  bill  the  said  jurors  of  the  said  Grand  Inquest  did 
then  and  there  return  into  the  said  court  of  the  said  ses- 
-ion-  BO  holden  as  aforesaid,  not  found  (m),  'whereupon  [  *39T  ] 
the  said  plaintiff  was  then  and  there  discharged  from 
and  out  of  custody,  and  the  said  prosecution  and  complaint  against 
him  the  said  plaintiff  then  and  there  became  and  were  abandoned 
by  the  said  defendant,  and  wholly  ended  and  determined. 

2nd  Count. — And  the  said  defendant,  further  contriving  and  in- 
tending as  aforesaid,  at  the  aforesaid  general  quarter  sessions  of  the 
peace,  holden  in  and  for  the  county  of ,  at,  Ac.  on,  &c,  be- 
fore, &c.  and  others  their  fellows  Justices  of  our  said  Lord  the 
King,  assigned  to  keep  the  peace,  etc.,  and  also  to  hear  and  deter- 
mine divers  felonies,  trespasses,  and  other  misdemeanors  in  the  said 
county  committed,  falsely  and  maliciously,  and  without  any  reason- 
able or  probable  cause  whatever,  preferred  and  prosecuted,  and  caus- 
ed to  be  preferred  and  presented  to  the  jurors  of  the  Grand  Inquest 
then  and  there,  to  wit,  at  the  said  sessions,  -worn  and  charged  to 
impure  for  our  said  \invd  the  King  and  the  body  of  the  said  county, 

(/i)  It  seems  to  be  now  settled  that  a  de-  allege  that   the  defendant  "  indicted,  and 

feo(    in  the  jurisdiction  of  the  court,  or  in  caused  and   procured   to   be  indioted,  the 

the  indictment,  w;                  ude  the  pla  laintiff."     See  2  Burr. 

till'    from    maintaining    h                    and  (/)  As  1                  rth  cumulative  charg- 

then                           (  as  I  i  the  [.  446.    It  is  i  iffioient  to 

oy  of  the  court  is  necessary.    Supra  vol.  I.  that   any  one  of  the            •     .  the  bill  of 

I!''..     2  W'ils.  102.     ('"in   I » i  lt  .    Action   on  indictment  was  maliciously   preferred,  see 

the  case   for  a  conspii  wy,  o.  I.  K.>1.  Ab.  vol.  1.  146.     H    i      Tayl  r,  I  Taunt  J 

Action  Sur  Case,  60.  '  '.  T.  R.  '-'IT.     -  Sir.  The  charge  Bhould  be  set  out  in  Bubstanoa 

691.     1  Silk.  15.  only,  vol.  1.  H7.     A-  to  the  degree  of  j>ar- 

(i)  As  to  setting  out  the  style  of  court,  and   accuracy   with   which  this 

see  vol.  I.  -1 16.  Bhould  be                     I.  I.  117. 

(/.)  Until  a  bill  is   found   by  the  Grand  (»«]  The  declaration  must  show  that  the 

Jury,  it  is  a  bill  and   not   an   indictment,  prosecution   was  determined,  supra  vol.  I. 

ml  ought  in  Btrictness  to  149,  160.    The  allegation  that  the  Grand 

vide  Buprn  vol.  I.  H"'.     Com.  Dig.  Ind.  r>.  Jury  threw  out                          sufficiently 

6  Taunt,  187    I  Salk.  876.     Bui  it   i-   nol  to  show  a  determination.— 2  T.   K. 

unusual,  where  a  bill  has   been   found,  to  Supra  vol.  I.  161. 


397  APPENDIX. 

a  certain  other  bill  of  indictment  against  the  said  plaintiff,  by  the 
name,  &c,  of,  &c,  charging,  accusing,  and  purporting,  that  the 
said  plaintiff,  on  the  aforesaid  day,  &c,  feloniously  stole,  (se/  out 
the  particulars*)  of  the  said  defendant,  which  last  mentioned  bill  of 
indictment  the  jurors  of  the  said  Grand  Inquest  did  then  and  there 
return  into  the- said  court  of  the  said  sessions  so  holdenas  aforesaid, 
not  found  (n). 

3rd  Count. — And  for  that  whereas  the  said  defendant  further 
contriving  and  intending  as  aforesaid,  &c.,  at,  &c,  falsely  and 
maliciously,  and  without  any  reasonable  or  probable  cause  what- 
soever, imposed  the  crime  of  felony  (o)  on  him  the  said  plaintiff,  by 
means  of  which  said  several  premises,  the  said  plaintiff  is  greatly 
hurt,  injured,  and  prejudiced  in  his  said  good  name,  fame,  and  cre- 
dit, and  is  brought  into  great  scandal,  ignominy,  and  disgrace  amongst 

all  his  neighbors  and  other  good  and  worthy  subjects  of 
[  *398  ]    the  realm,  and  hath  been  taken,  and  suspected  to  *be  a 

felon  and  a  thief,  and  he  the  said  plaintiff  was  also  im- 
prisoned, and  kept  and  detained  in  prison,  in  manner  and  for  the 
time  hereinbefore  mentioned,  and  suffered  and  underwent  many  and 
great  troubles  and  labors,  both  of  body  and  mind,  and  during  all 
which  time  he  was  hindered  and  prevented  from  managing,  conduct- 
ing, and  transacting  his  necessary  affairs  and  business,  and  was  forced 
and  obliged  to  lay  out  and  expend  a  large  sum  of  money  in  and  about 
the  obtaining  his  release  from  and  out  of  custody  as  aforesaid,  and 
in  and  about  the  defence  of  himself  and  the  manifestation  of  his  in- 
nocence in  the  premises  so  alleged  and  objected  against  him  as  afore- 
said, and  he  the  said  plaintiff  also  was,  hath  been,  and  is,  on  occa- 
sion of  the  several  premises  aforesaid,  otherwise  greatly  injured  and 
damnified,  to  wit,  &c. 


12.  General  Form  of  Declaration  for  a  malicious  Prosecution  by 
indictment  at  the  Assizes  or  Sessions,  where  the  Plaintiff  was  ac- 
quainted. 

For  that  the  said  defendant  maliciously  and  wickedly  intending  to 
oppress  and  injure  him  the  said  plaintiff,  on  &c.,  at,  &c,  maliciously, 
and  without  any  reasonable  or  probable  cause  whatsoever,  charged 
the  said  plaintiff  with  the  crime  of  felony,  and  caused  and  procured 
the  said  plaintiff  to  be  arrested  and  committed  to  the  common  gaol 

for  the  county  of ,  and  there  to  be  imprisoned,  by  reason  of 

that  charge,  for  a  long  space  of  time,  to  wit,  for  the  space  of ■ — , 

and  afterwards,  to  wit,  on  &c,  at  the  session  of  our  Lord  the  King, 
of  oyer   and   terminer,   &c.  (o),  holden   at,   &c.,in   and   for  the 

(n)  Supra  note  (m).  county  of ,  on  &c,  at,  &c,   before  A. 

(o)  As  to  the  sufficiency  of  this  general  B.,  C.  D.  and  others,  their  fellows,  Justices 

count,  see  vol.  I.  448.     Davis  v.  JVoak,  1  of  our  said  Lord  the  King,  assigned  to  keep 

Starkie's  C.  377.     Blizard  v.  Kelly,  2  B.  the  peace  in  the  county  of and  also 

and  C.  285.  to  hear  and  determine  divers  felonies,  tres- 

(o)  Or  if  the  prosecution   were   at  the  passes,  and  other  misdemeanors  committed 

sessions,  thus,  at  the  General  Quarter  Ses-  in  that  county.     This   statement   ought    of 

sions  of  the  peace,  holden  (by  adjournment,  course  to  accord  with  the  caption  of  the  in- 

if  that  be  a  fact,),  w.  and  for  the  said  dictment  and  record  of  acquittal. 


PRECEDENTS— DECLARATIONS.       398 

said    county  of ,  before,  &o.,   maliciously,  'and    [  *399  ] 

without  any  reasonable  or  probable  cause  indicted  and 

1  and  procured  to  be  iudict.nl  thesaid  plaintiff,  for  that  he  the 
said  plaintiff  (j»),  on,  &c,  at,  Ac,  (set  forth  the  substance  of  the 
charge,*)  and  that  the  said  defendant  falsely  and  maliciously,  and 
without  any  reasonable  or  probable  cause  whatsoever,  prosecuted 
and  caused  and  procured  to  be    pr  I  the   Baid   indictment 

id  plaintiff,  to  wit,  at,  &c,  until  the  said  plaintiff,  at 
terwards,  to  wit.  al   the  ( 7  >  delivery  of  the  gaol  of  our  Baid   Lord 

the  King,  of  hie  said  cdunty  of ,  of  the  prisoners  therein 

holden,  on  Ac.  at  &c,  before,  a  ..  rned  to  deliver  the  gaol  of 
id  county  of  the  prisoners  therein  being,  was  duly,  by  a  jury 
of  the  Baid  county,  and  by  the  judgment  of  the  Baid  court  of  gaol 
delivery  (r),  duly  acquitted  of  the  premises  in  the  said  indictment 
charged,  and  the  said  charge  and  prosecution  then  and  there  became 
and  were  wholly  ended  and  determined. 

Adda  general  count  for  imposing  the  crime. of  felony,  as  in 
Prea  dent  11. 

By  means  whereof  he  the  said  plaintiff  hath  been  and  is  greatly 
injured  and  aggrieved  in  his  good  name,  fame,  and  credit,  and  hath 
suffered  and  undergone  great  trouble  and  labor  of  his  body,  and 
anxiety  of  mind,  and   been  put  to  great  expense  of  his  money-,  to 

wit,  to  the  amount  of .  in  the  manifesting  his  innocence  and 

procuring  his  acquittal,  and  hath  also  been  wholly  hindered  and 
prevented  from  transacting  his  necessary  business  and  affairs,  and 
hath  been,  and  is  otherwise  greatly  injured,  prejudiced,  and  aggriev- 
ed, to  wit,  at,  &c. 


*13.     Plea  of  the  General  Issue  (s). 

A\i>  the  Baid  defendant,  by  ES.  F.  his  attorney,  comes 
and   defends   the  wrong  and  injury,  when,  &C.  and  saith     [  *400  ] 
that  he   is  not   guilty  of  the  premises  above  laid  to  his 
charge  in  manner  and  form  as  the  said  plaintiff  hath  above  complain- 
ed against  him,  and  of  this  he  the  said  defendant  puts  himself  upon 
the  country,  &c. 

14.     Plea  of  Justification  of  words  of  Felony. 
And  for    a    further   plea  in   this   behalf  (s),   the   Baid   defendant, 

(n)  See  vol.  t.  p.  146.  («)  Aa  to  the  Buffioienoy  of  this  plea  to 
(q)  Or  if  the  acquittal  were  at  the  quar-  enable  .the  defendant  togointoevid 
ter  sessions,  thu9— '•  General  Quarter  Sea-  his  tee  w>l.  1-  468.  Wh< 
sionsof  the  peace  of  our  Baid  Lord  the  Bpeoial  justifioa  ion  is  pleaded  a  is  fire- 
ting,  holden  (by  adjournment,  if  wch  bt  quently  inexpedient  to  pli  oeraj 
the  fart)  .hi,  &o.,  :it,  &o.,  before,  the  effect  i-  to  give  the  phiutiff 
The  Statement  should  agree  with  the  record  the  opening  end  reply. 

aittal.  U  to  the  policy  of  pleading  the  gtn- 

(r)   Or  Quarter  Sessions,   according  to  eral  iasue  with  this  plea,  see  the  lasi  pre- 

thc  fact.  cediug  note. 


400  APPENDIX. 

by  leave  of  the  court  here  for  this  purpose  first  had  and  obtained, 
according  to  the  form  of  the  statute  in  such  case  made  and  provided, 
saith  that  the  said  plaintiff  ought  not  to  have  or  maintain  his  afore- 
said action  thereof  against  him  the  said  defendant,  because  he  saith 
that  the  said  plaintiff  before  the  speaking  and  publishing  of  the 
words  in  the  said  declaration  mentioned,  to  wit,  on,  &c,  at,  &c.  (£) 
feloniously  did  steal,  take,  and  carry  away,  {describing-  the  goods^ 
(u),  of  the  goods  and  chattels  of  him  the  said  defendant.  Where- 
fore ho  the  said  defendant  at  the  said  several  times  in  the 
r  *401  ]  said  declaration  mentioned,  did  speak  and  publish  of  and 
concerning  *the  said  plaintiff  the  said  several  words  in 
the  said  declaration  mentioned  (x~),  as  he  lawfully  might  for  the 
cause  aforesaid,  and  this  he  the  said  defendant  is  ready  to  verify. 
Wherefore  he  prays  judgment  if  the  said  plaintiff  ought  to  have  or 
maintain  his  aforesaid  action  thereof  against  him,  &c. 


15.  Plea  of  Justification  of  Words  of  Perjury. 

Because,  he  says,  that  before  the  speaking  and  publishing  of  the  said 

words,  of  and  concerning  the  said  plaintiff,  in  the  said counts 

mentioned,  to  wit,  on,  &c.  at,  <fec.  at  the  assizes  then  and  there  holden 
before ,  then  Chief  Justice  of  our  said  Lord  the  King,  assign- 
ed to  hold  pleas  before  the   King  himself,  and ,  then  one  of 

the  Justices  of  our  said  Lord  the  King,  assigned  to  hold  pleas  be- 
fore the  King  himself,  justices  of  our  said  Lord  the  King,  appointed 
to  take  the  assizes  for  the  said  county,  according  to  the  form  of 
the  statute  in  such  case  made  and  provided,  a  certain  issue  be- 
fore them  duly  joined  in  an  action  brought  and  prosecuted  in  the 

court  of  our  said  Lord  the  King, and  his  companions,  then 

Justices  of  our  said  Lord  the  King,  of  the  bench  at  Westminster, 

in  the  county  of  Middlesex,  by  and  at  the  suit  of  one ,  as 

the  plaintiff,  against  one ,  as  the  defendant,  for  a  supposed 

breach    of   certain    promises    and    undertakings,   alleged    by   the 

said to  have  been  made  to  him  by  the  said -,  and  not 

performed,  came  on  to  be  tried  in  due  form  of  law,  and  was  then 
and  there  tried  by  a  jury  of  the  country  in  that  behalf,  duly  taken 
and  sworn  between  the  parties  aforesaid,  and  upon  such  trial 
of  the  said  issue,  the  said  plaintiff  appeared  as  a  witness  for  and 

on  behalf  of  the  said ,  the  plaintiff  in    the  said 

[  *402  ]    action,  and  the  *said  plaintiff   was    then   and  there  in 

open  court  at  the  said  assizes,  holden  as  aforesaid,  before 

(0  Where  the  justification  is  local,  the  (u)  As  to  the  description  of  the  felony 
defendant  ought  to  plead  in  the  county  with  reference  to  the  alleged  slander  see 
where  the   matter  of  justification  arose,  see     vol.  I.  478. 

Craft   v.    Boile,   1   Saund.   247,    1    Will.         (x)  As  to  the  necessity   for  confessing 
Saund.    217,  note  1,  and   at    common   law     the  speaking  of  the  words,  see  vol.  I.  475. 
the   case    ought   to  be  tried  there.     But  a 
trial  in  a   different  county  is  aided  by  the 
st.  16,  17  C.  2,  c.  8.     Vol.  I.  p.  476. 


PRECEDENTS— DECLARATIONS.       402 

the  said and ,  the  Justices  aforesaid  duly  sworn,  and 

took  his  corporal  oath  upon  the  holy  gospel  of  God,  to  speak  the 
truth,  the  whole  truth,  and  nothing  hut  the  truth,  touching  and 
concerning  the  matters  Id    question  in    the  said  issue,   (they  the 

said and  ,  there    having   sufficient    and  competent 

power  and  authority  to  administer  the  .-aid  oath  to  the  said  plain- 
tiff in  that  behalf,)  and  upon  the  said  trial  of  tin;  said  issue,  cer- 
tain questions  then  and  there  became  and  were  material,  to  wit, 
whether,  <fcc.  (here  state  the  questions  according  to  the  fact,  and 
as  they  relate  to  the  charge  of  perjury  against  tin  plaintiff,)  and 
the  said  defendant  further  says,  thai  the  said  plaintiff  beii 
sworn  as  aforesaid,  upon  his  oath  aforesaid,  then  and  there,  to  wit, 
on,  <fec.  aforesaid,  at,  Ac  aforesaid,  falsely,  wickedly,  wilfully,  ma- 
liciously, and  corruptly,  and  by  his  own  act  and  consent,  did  say,  de- 
pose, swear,  and  give  in  evidence,  amongst  other  things,  at  and 
upon  the  said  trial,  to  and  before  the  said  jurors  so  sworn  to  try 
the  .-aid  issue  as  aforesaid,  and  the  justices  aforesaid,  that,  &C. 
(Jiere  state  that  pari  of  the  plaintiff's  evidence  in  which  he  commit- 
ted the  perjury,)  whereas  in  truth  and  in  fact,  A.c.  {here  negative 
the  plaintiff  's  evidence  as  in  an  indictment  for  perjury*)  and  the  said 
plaintiff  did  thereby,  in  the  said  court,  at  the  said  assizes  so  hold- 
en  as  aforesaid,  upon  his  said  oath  upon  the  trial  of  the  said  issue, 
falsely,  wickedly,  wilfully,  and  corruptly,  commit  wilful  and  corrupt 
perjury,  wherefore  the   said  defendant,  at  the   said  several   times, 

when,  &c.  in  the  said counts  mentioned,  at,  etc.  aforesaid, 

spoke  and  published  of  and  concerning  the  said  plaintiff  the  several 

words  in  the  said counts  mentioned  to  have  been  spoken  and 

published  by  him  the  said  defendant,  of  and  concerning  the  said 
plaintiff,  as  it  was  lawful  for  him  to  do  for  the  cause  aforesaid.  And 
this,  &c.  (as  in  Precedent  14.) 


*16.  Plea  of  Justification  to  a  Declaration  for  a  Libel  on  a  Dii 
ing  Minister,  charging  him  with  having   uttered  per- 
sonal Invectives  from  the  Pulpit  against  a  third  per-     [  *403  ] 
son  (#). 

That  before  and  at  the  time  of  the  speaking  and  publishing  of 
the  several  scandalous  words  by  the  Baid  plaintiff,  as  hereinafter 
mentioned,  one  Margaret  Fair  did  assist  in  the  management  and 
conduct  of  a  certain  Sunday  School,  and  was  a  person  of  distin- 
guished merit  and  spotless  reputation, and  that  the  plaintiff,  well 
knowing  the  premises,  before  the  several  times  of  printing,  and 
publishing  the  several  supposed  libels  by  the  defendants,  a--  in  the 
declaration  mentioned,  to  wit,  on  the  6th  of  April,  1823, at  Great 
Marlow  aforesaid,  just  before  his  preaching  and  delivering  a  certain 

fy)  See  Edwards  v.  Bell,  1  Bingh.  403.  non  obstante  veredicto,  the  plea  was  held 
On  a  motion  for  judgment  for  the  plaintiff    to  be  an  answer  to  the  declaration. 


403  APPENDIX. 

discourse  or  sermon,  then  and  there  by  him,  as  such  pastor  or  minis- 
ter addressed  to  a  certain  congregation  of  the  said  dissenters,  as- 
sembled for  the  purpose  of  (amongst  other  things)  hearing  the  said 
discourse  or  sermon,  in  a  certain  chapel,  and  whilst  he  the  plaintiff 
was  officiating  in  the  said  chapel  as  pastor  or  minister,  spoke  and 
published,  from  a  certain  part  or  station  of  the  chapel,  assigned  to 
him  as  pastor  or  minister  for  the  preaching  and  delivering  of  the  dis- 
course or  sermon,  and  to  and  in  the  presence  of  the  congregation, 
of  and  concerning  the  said  Margaret  Fair,  these  scandalous  words 
following  :— "  I  have  something  to  say  which  I  have  thought  of  say- 
ing some  time,  namely,  the  improper  conduct  of  one  of  the  female 
teachers  ;  her  name  is  Miss  Fair,  her  conduct  is  a  bad  example  and 
disgrace  to  the  school,  and  if  any  of  the  children  dare  ask  her  to  go 
home,  she  shall  be  turned  out  of  the  school  and  never  enter  it  again. 
Miss  Fair  does  more  harm  than  good."  And  thereby  then  and 
there  gave  great  offence  to  divers  of  the  said  dissenters,  to  wit,  one 

Joseph  Wright,  the  elder,  one,  &c,  and  occasioned  a 
[  *404  ]    *serious  misunderstanding  amongst  the  said  dissenters  in 

the  declaration  mentioned.  Wherefore  the  said  defend- 
ants did  afterwards,  to  wit,  at  the  several  times,  &c,  in  the  declara- 
tion mentioned,  print  and  publish  the  supposed  libels  in  the  declara- 
tion mentioned,  as  they  lawfully  might  for  the  cause  aforesaid,  which 
are  the  same  printing  and  publishing  the  supposed  libels  in  the  de- 
claration mentioned,'  and  this  they  are  ready  to  verify,  wherefore 
they  pray  judgment,  if  the  said  plaintiff  ought  to  have  or  maintain 
his  aforesaid  action  thereof  against  them,  &c.  There  were  other 
pleas  to  the  same  effect. 


17.    General  Replication  de  injuria,  8cc.  to  Pleas  of  Justification. 

And  as  to  the  said  pleas  of  the  said  defendant  by  him  secondly 
and  thirdly  above  pleaded,  the  said  plaintiff  saith  that  he,  by  reason 
of  any  thing  by  the  said  defendant  in  those  pleas  above  alleged, 
ought  not  to  be  barred  from  having  and  maintaining  his  aforesaid 
action  against  the  said  defendant,  in  respect  of  the  said  grievance  in 
the  said  declaration  mentioned  (or  in  the  said  first  and  second  counts 
mentioned  ;  or  in  the  introductory  parts  of  the  said  second  and  third 
pleas  mentioned,)  because  he  saith  that  the  said  defendant,  at  the 
said  times,  when,  Ac,  in  the  said  declaration  (or  in  the  said  first 
and  second  counts,  or  either  of  them,  or  in  the  introductory  parts  of 
the  said  -second  and  third  pleas,  or  either  of  them,)  mentioned  of 
his  own  wrong,  and  without  the  cause  by  him  the  said  defendant  in 
his  said  second  and  third  pleas,  or  either  of  them  mentioned,  did 
commit  the  said  grievances  (a)  in  the  said  declaration  (or  first 
and    second   counts,  or    introductory  parts   of    the  said    second 

(a)  Formerly  it  was  usual  to  repeat  the    1  Saund.  244,  but  this  is  -wholly  unneces- 
words  in  the  replication,  see  Croft  v.  Boite,    sary.     See  1  Will.  Saund.  244,  a.  note  (7). 


PRECEDENTS— DTCHCTMENTS.  404 

and  third  picas,)  'mentioned,  in  manner  and  form  as  the     [  *405  J 
said  plaintiff  hath  above  thereof  complained  against  him 
the  said  defendant,  to  wit,  at,  Ac.     And  this  he  the  said  plaintiff 
prays  may  be  inquired  of  by  the  country,  &c. 


18.  Information,  by  the  Attorney-  General,  for  a  Libel  against  a 
Foreign  Potentate  (ft). 

That  before  and  at  the  times  of  the  printing  and  publication  of 
the  Bcandalous,  malicious,  and  defamatory  libels  and  libellous 
matters  and  things  after  mentioned,  there  subsisted,  and  now 
subsists  friendship  and  peace  between  our  Sovereign  Lord  the 
Emg  and  the  French  Republic,  and  the  subjects  of  our  -aid  Lord  the 
King  and  the  citizens  of  the  said  Republic  ;  and  that  before  and  at 
those  times,  citizen  Napoleon  Bonaparte  was  and  yel  is  First  Consul 
of  the  >aid  French  Republic,  to  wit,  at  the  parish  of  St.  Anne,  with- 
in the  liberty  of  Westminster,  in  the  county  of  Middlesex  :  and  that 
Jean  Peltier,  late  of  Westminster,  in  the  county  of  Middlesex,  gen- 
tleman, well  knowing  the  premises  aforesaid,  but  1  icing  a  malicious 
and  ill  disposed  person,  and  unlawfully  and  maliciously  devising  and 
intending  to  traduce,  defame,  and  vilify  the  said  Napoleon  Bonaparte. 
and  to  bring  him  into  ureal  hatred  and  contempt,  a-  well  among  the 
liege  subjects  of  our  said  Lord  the  King,  as  among  the  citizens  of  the 
said  Repnblic,  and  to  excite  and  provoke  the  citizens  of  the  said  Re- 
public, by  force  of  arms  to  deprive  the  said  Napoleon  Bonaparte  of 
his  consular  office  and  magistracy  in  the  said  Republic,  and  to  kill 
and  destroy  the  said  Napoleon  Bonaparte,  and  also  unlawfully  and 
maliciously  devising  as  much  as  in  him,  the  said  Jean  Peltier,  lay,  to 
interrupt,  disturb,  and  destroy  the  friendship  and  peace  subsisting 
between  our  said  Lord  the  King  and  his  subjects,  and 
the  said  Napoleon  'Bonaparte,  the  French  Republic,  and  [  *406  ] 
the  citizen*,  of  the  same  Republic,  and  to  excite  animosi- 
ty, jealousy,  and  hatred  in  the  -aid  Napoleon  Bonaparte  against  our 
said  Lord  the  King  and  hi-  subjects,  on  the  10th  day  of  August,  in 
the  forty-second  year  of  the  reign  of  our  Sovereign  Lord  George  the 
Third,  by  the  grace  of  God,  of  the  [Jnited  Kingdom  of  Great  Bri- 
tain and  Ireland,  King,  Defender  of  the  Faith:  at  the  parish  of  St. 
Anne,  within  the  liberty  of  Westminster,  in  the  county  of  .Middlesex, 
unlawfully  and  maliciously  did  print  and  publish,  and  cause  and  pro- 
cure to  be  printed  and  published,  a  most  scandalous  and  malicious  li- 
bel, in  the  French  language,  of  and  concerning  the  said  Napoleon 
Bonaparte,  that  is  to  Bay,  one  part  thereof  to  the  tenor  following, 
that  is  to  say,  "  Le  IS  Brumaire,  An  viii.  Ode  attribute  a  Cheuier. 
"  Quelles  temprtcs  effroyables 
"  Grondent  BUT  les  dots  dechaincs,"  <fcc. 
And  in  another  part  thereof  to  the  tenor  following,  that  is  to  say. 
"  D«;ja  dans  sa  rage  insolcnte,"  etc. 

(6)  This  was  the   form  use<l  in  Peltier's  Case,  Supra  vol.  II.  p.  218. 

Vol.  II.  54 


406  APPENDIX. 

"Which  said  scandalous  and  malicious  words,  in  the  French  language, 
first  above  mentioned  and  set  forth,  being  translated  into  the  Eng- 
lish language,  were  and  are  of  the  same  signification  and  meaning 
as  these  English  words  following,  that  is  to  say,  "  What  frightful 
tempests  growl  on  the  unchained  waves,  &c. 

And  which  said  scandalous  and  malicious  words  secondly  above 
mentioned  and  set  forth,  being  translated  into  the  English  language, 
were  and  are  of  the  same  signification  and  meaning  as  these  English 
words  following,  that  is  to  say,  "  Already,"  &c. 

Second  Count. — That  the  said  Jean  Peltier  so  being  such  person 
as  aforesaid,  and  unlawfully  and  maliciously  devising  and  intending 
as  aforesaid,  afterwards,  to  wit,  on  the  26th  of  August,  in  the  forty- 
second  year  of  the  reign  aforesaid,  at  the  parish  of  St.  Anne,  in  the 
liberty  of  Westminster,  in  the  county  of  Middlesex,  unlawfully  and 
maliciously  did  print  and  publish,  and  cause  and  procure  to  be  print- 
ed and  published,  a  certain  other  scandalous  and  malicious 
[  *407  ]  libel,  containing  therein  among  other  *things,  divers  other 
scandalous  and  malicious  matters,  in  the  French  language, 
of  and  concerning  the  said  Napoleon  Bonaparte,  in  the  form  of  an 
address  to  the  French  people,  according  to  the  tenor  following,  that 
is  to  say,  "  Citoyens,"  &c.     Which  said  scandalous  and  malicious 
words,  in  the  French  language,  last  before  mentioned  and  set  forth, 
being  translated  into  the  English  language,  were  and  are  of  the  same 
signification  and  meaning  as  these  English  words  following,  that  is 
to  say,  "  Citizens,"  &c.     To  the  great  scandal,  disgrace  and  danger 
of  the  said  Napoleon  Bonaparte,  to  the  great  danger  of  creating  dis- 
cord between  our  said  Lord  the  King  and  his  subjects  and  the  said 
Napoleon  Bonaparte,  the  French  Republic,  and  the  citizens  of  the 
said  Republic,  in  contempt  of  our  said  Lord  the  King  and  his  laws, 
to  the  evil  example  of  all  others  in  the  like  case  offending,  and 
against  the  peace  of  our  said  Lord  the  King,  his  crown  and  dignity. 
Whereupon  the  said  Attorney-General  of  our  said  Lord  the  King, 
who  for  our  said  Lord  the  King  in  this  behalf  prosecuteth  for  our 
said  Lord  the  King,  prayeth  the  consideration  of  the  court  here  in 
the  premises,  and  that  due  process  of  law  may  be  awarded  against 
him  the  said  Jean  Peltier  in  this  behalf,  to  make  him  answer  to  our 
said  Lord  the  King  touching  and  concerning  the  premises  afore- 
said (a). 


19.  Indictment  for  uttering  Seditious  Words. 

That  A.  B.  late  of,  &c,  laborer,  being  a  wicked,  seditious,  and 
evil-disposed  person,,  and  greatly  disaffected  to  our  said  Lord  the 
King,  and  contriving  and  intending  the  liege  subjects  of  our  said 
Lord  the  King  to  incite  and  move  to  hatred  and  dislike  of  the  per- 
son of  our  said  Lord  the  King,  and  of  the  government  established 
within  this  realm,  on,  &c,  with  force  and  arms,  at,  &c.  in  the  pres- 

(a)  The  information  contained  three  other  counts. 


PRECEDENTS— INDICT. M  BNTS.  *07 

ence  and  hearing  of  divers  liege  subjects  of  our  said  Lord  the  King, 
maliciously,  unlawfully,  wickedly  and  seditiously  did 
publish,  utter,  and  "declare  with  a  loud  voice,  of  and  [  *408  ] 
concerning  our  said  Lord  the  King,  these  words  follow- 
ing, that  is  to  say,  "His  Majesty,  George  the  Third,  meaning  our 
said  Lord  the  King.)  is  ****,  thank  God  for  it;  1  (meaning  the 
-aid  A.  B.)  hope  he  (meaning  our  Baid  Lord  the  King.)  will  soon 
be  no  more  ;  damnation  to  all  royalists,"  to  the  great  .-caudal  of 
our  said  Lord  the  King,  in  contempt  of  our -aid  Lord  theKing  and 
his  laws,  to  the  evil  and  pernicious  example  of  all  others  in  the  like 
case  offending,  and  against  the  peace,  &c. 

Second  Count. — And  the  jurors,  aforesaid,  &c.  That  the  said 
A.  B.  being  such  wicked,  seditious,  and  evil-disposed  person  as 
aforesaid,  and  greatly  disaffected  to  our  said  Lord  the  King,  and 
contriving  and  intending  tin' liege  subjects  of  said  Lord  the  King- 
to  incite  and  move  to  hatred  and  dislike  of  tin'  person  of  our  said 
Lord  the  King,  and  the  government  established  within  this  realm, 
on,  Ac.,  with  force  and  arms,  at,  Arc.  unlawfully,  wickedly,  mali- 
ciously, and  seditiously,  in  the  presence  and  hearing  of  divers  liege 
subjects,  of  our  said  Lord  the  King,  again  did  publish,  utter,  and 
declare  of  and  concerning  our  said  Lord  the  King,  and  his  good, 
true,  and  faithful  subjects,  these  words  following,  that  is  to  say,  "I 
(meaning  the  said  A.  B.)  hope  King  George  the  Third  (meaning 
our  said  Lord  the  King,)  will  soon  be  no  more  ;  damnation  to  all 
royalists."     (Conclusion  as  before.*) 


20.  Information  for  Writing  and  Publishing  a  Libel  against  the 
King  and  Government. 

That  I.  H.,  late  of  London,  clerk,  being  a  wicked,  malicious, 
seditious  and  ill-disposed  person,  and  being  greatly  disaffected  to 
our  said  Lord  the  King,  and  to  his  administration  of  the  government 
of  this  kingdom,  and  the  dominions  thereunto  belonging,  and  wick- 
edly, maliciously,  and  seditiously  contriving, devising  and  intending 
to  stir  up  and  excite  discontent  and  sedition  among  his  Majesty's 
subjects,  and  to  alienate  and  withdraw  the  affection, 
fidelity,  and  allegiance  of  his  Majesty's  *subjccts  from  |  '409  ] 
his  said  Majesty,  and  to  insinuate,  and  eau.-e  it  to  lie  be- 
lieved, that  divers  of  his  said  Majesty's  innocent  and  deserving  sub- 
jects had  been  inhumanly  murdered  by  his  said  Majesty's  troops  in 
the  province,  colony,  or  plantation  of  the  Massachusetts  Bay,  in 
New  England,  in  America,  belonging  to  the  crown  of  Great  Britain, 
and  unlawfully  and  wickedly  to  seduce  and  encourage  his  Majesty's 
subjects  in  the  said  province,  coh»uv,  or  plantation,  to  resisl  and  op- 
pose his  said  Majesty's  government,  on,  Ac.,  with  (c)  force  and 
arms,  at  (cf),  Ac.    wickedly,  maliciously  (e)  and  seditiously   did 

(c)  This  allegation  is   unnecessary,   see         (c)  As  to  this   averment,   see  vol.  II.  p 
7  T.  R.  4.  303.     Sty.  892.     1  Yin.  Ab.  33. 

(i/)  As  to  the  venue,  see  vol.  II.  p.  802. 


409  APPENDIX. 

write  and  publish  (/),  and  cause  and  procure  to  be  written  and 
published,  a  certain  false  (§-),  wicked,  malicious,  scandalous,  and 
seditious  libel  (A),  of  and  concerning  his  said  Majesty's  government, 
and  the  employment  of  his  troops,  according  to  the  tenor  and 
effect  (t)  following : 

"  King's  Arms-Tavern,  Cornhill,  June  7,  1775. 

"  At  a  special  meeting  this  day  of  several  members  of  the  Con- 
stitutional Society,  during  an  adjournment,  a  gentleman  proposed, 
that  a  subscription  should  be  immediately  entered  into  by  such  of 
the  members' present  who  might  approve  the  purpose,  for  raising  the 
sum  of  one  hundred  pounds,  to  be  applied  to  the  relief  of  the  wid- 
ows, orphans,  and  aged  parents  of  our  beloved  American  fellow- 
subjects,  who,  faithful  to  the  character  of  Englishmen,  preferring 
death  to  slavery,  were,  for  that  reason  only,  inhumanly  murdered  by 
the  King's  (meaning  his  Majesty's)  (fc)  troops  at  Lexington  and 
Concord,  in  the  province  of  Massachusetts,  (meaning  the  said  pro- 
vince, colony,  or  plantation  of  the  Massachusetts  Bay,  in  New-Eng- 
land, in  America,)  on  the  nineteenth  of  last  April ; 
[  *410  ]  *which  sum  being  immediately  collected,  it  was  thereupon 
resolved,  that  Mr.  H.  (meaning  himself  the  said  I.  H.) 
do  pay  to-morrow  into  the  hands  of  Messrs.  B.  and  C.  on  account 
of  Dr.  F.  the  said  sum  of  one  hundred  pounds  ;  and  that  Dr.  F.  be 
requested  to  apply  the  same  to  the  above  mentioned  purpose. 

I.  H." 
(Meaning  himself  the  said  I.  H.)     In  contempt  of  our  said  Lord 
the'King,  in  open  violation  of  the  laws  of  this  kingdom,  and  against 
the  peace,  &c. 

Second  Count. — That  the  said  I.  H.  being  such  person  as  afore- 
said, and  again  unlawfully,  wickedly,  maliciously,  and  seditiously 
devising,  contriving,  and  intending  as  aforesaid,  to  wit,  on,  &c,  with 
force  and  arms,  at,  &c.  wickedly,  maliciously,  and  seditiously  print- 
ed and  published,  and  caused  and  procured  to  be  printed  and  pub- 
lished, in  a  certain  newspaper,  entitled,  "  The  Morning  Chronicle 
and  London  Advertiser,"  a  certain  other  false,  wicked,  scandalous, 
malicious,  and  seditious  libel,  of  and  concerning  his  said  Majesty's 
government  and  the  employment  of  his  troops,  according  to  the  tenor 
and  effect  following,  that  is  to  say,  (setting  out  the  libel  as  before.) 

Third  and  Fourth  Counts.- — For  publishing  the  same  in  other 
newspapers. 

Fifth  Count. — Wickedly,  maliciously,  and  seditiously  did  print 
and  publish,  and  cause  and  procure  to  be  printed  and  published,  a 
certain  other  false,  wicked,  malicious,  scandalous,  and  seditious 
libel,  of  and  concerning  his  said  Majesty's  government  and  the 
employment  of  his  troops,  according  to  the  tenor  and  effect  follow- 
ing, that  is  to  say,  (as  before.) 

(/")  Supra   vol.  I.  p.  358.     Baldwin  v.         (h)  See  vol.  I.  p.  358. 
Elphinstone,  Bl.  R.  1037.  (t)  See  vol.  I.  p.  364. 

lg)  This   allegation  need  not  be  proved,         (k)  As  to  the  nature  and  use  of  an  in- 

eee  7  T.  R.  4,  and  supra  vol.  II.  p.  303.  nuendo,  see  vol.  I.  p.  418. 


PRECEDENTS— INDICTMENTS.       410 

Sixth  Count. — For  printing  and  publishing  the  former  part  of  the 
libel. 

Seventh  Count. — And  the  said  Attorney-General  of  onr  said  Lord 
the  King  for  our  said  Lord  the  King  further  gives  the  court  here  to 
understand  and  be  informed,  that  the  said  I.  II.  being  such  person  a^ 
aforesaid,  and  again  unlawfally,  wickedly,  maliciously,  and  seditiously 
contriving,  devisingandintendingasaforesaid,  afterwards, 
to  wit,  on,  &c.  'with  force  and  arms,  at,  Ac,  wickedly,  ma-  [  "  111  ] 
liciously,  and  seditiously,  did  write  and  publish,  and  cause 
and  procure  to  be  written  and  published,  a  certain  false,  wicked,  scan- 
dalous, malicious,  and  seditious  Libel,  of  and  concerning  his  said  Ma- 
jesty's government  and  the  employment  of  his  troops,  according  to 
the  tenor  and  effect  following: — "  1  (meaning  himself  the  -aid  I. 
H.)  think  it  proper  to  give  the  unknown  contributor  this  notice,  that 
I  (again  meaning  himself  the  said  I.  IT.)  did  yesterday  pay  to 
Messrs.  I>.  and  C.  on  the  account  of  Dr.  F.  the  sum  of  fifty  pounds, 
and  that  I  (again  meaning  himself  the  said  I.  H.)  will  write  to  Dr. 
F.  requesting  him  to  apply  the  same  to  the  relief  of  the  widows, 
orphans,  and  aged  parents  of  our  beloved  American  fellow-subjects, 
who.  faithful  to  the  character  of  Englishmen,  preferring  death  to 
slavery,  were,  for  that  reason  only,  inhumanly  murdered  by  the 
king's  (meaning  his  said  Majesty's)  troops,  at  or  near  Lexington 
and  Concord,  in  the  province  of  Massachusetts,  (meaning  the  said 
province,  colony,  or  plantation  of  the  Massachusetts  Bay,  in  New- 
England,  in  America,)  on  the  nineteenth  of  last  April.  I.  H." 
(Again  meaning  himself  the  said  1.  H.) — (Conclusion  as  before)  (/). 


21.     Indictment  for   Writing-  and  Delivering  a  Challenge  at  the 
instance  of  a  third  Person. 

That  A.  B.,  late  of,  <fec,  Esq.  on,  &c,  at,  <fcc,  being  of  a  turbu- 
lent, wicked,  and  malicious  disposition,  and  intending  to  procure 
great  bodily  harm  and  mischief  to  be  done  to  C.  D.,  late  of,  &c, 
in  the  county  aforesaid,  Esquire,  and  also  intending,  as  much  as  in 
him  the  Baid  A.  B.  lay,  to  ineite  and  provoke  the  said  C. 
D.  unlawfully  to  fight  a  duel  with  and  against  one  »E.  F.  [  *412  ] 
late  of  the  same  place,  Fsquire,  on  the  said  second  day 
of  December, in  the  year  aforesaid,  with  force  and  arms,  at  15.  afore- 
said, in  the  county  aforesaid,  did  unlawfully,  wickedly,  and  malici- 
ously write,  and  cause  to  be  written,  a  certain  paper-writing,  in  the 
words,  letters,  and  figures  following,  to  wit.  "  To  C.  I>..  Esquire, 
at  B.  (meaning  the  said  C.  D.)  by  the  desire  of  Mr.  E2.  !■'.  (mean- 
ing the  said  E.  P.)  1  (meaning  himself  the  said  A.  B.)  wait  on 
you  (meaning  tin;  said  C.  D.)  to  inform  you  (meaning  the  said  C. 
D.)  that  he  (meaning  the  said  E.  F. )  expects  such  satisfaction  as 
one  gentleman  should  require  from  another,  foran  insult  bestowed 

(0  The  original,  see  Cowp  688,  contains    papers,  and  also  the   publishing  of  both  on 
other  counts  stating  the  printing  ami  pub-    different  days, 
lishing  of  the  latter  libel  in  ditferent  news- 

54* 


412  APPENDIX. 

on  him;  your  (meaning-  the  said  C.  D.'s)  conduct  merits  every 
treatment  a  scoundrel  deserves.  Manner,  time,  and  place  left  to 
you  (meaning  the  said  C.  D.)  A.  D.  Dec.  2."  (Meaning  and  in- 
tending by  the  said  paper  writing  a  challenge  to  the  said  C.  D.  to 
fight  a  duel  with  and  against  the  said  E.  F.)  which  said  paper- 
writing  (meaning  and  intending  the  same  as  such  challenge  as  afore- 
said,) he  the  said  A.  B.  afterwards,  to  wit,  on  the  same  day  and 
year  aforesaid,  at  B.  aforesaid,  in  the  county  aforesaid,  unlawfully, 
wickedly,  and  maliciously  did  deliver,  and  cause  to  be  delivered,  to 
the  said  C.  D.  against  the  peace,  &c. 

Second  Count— for  delivering  a  written  Challenge  as  from,  and  on 
the  part,  and  by  the  desire  of  E.  F. 

That  the  said  A.  B.  being  such  evil-disposed  person  and  disturb- 
er of  the  peace  of  our  said  Lord  the  King,  as  aforesaid,  and  intend- 
ing to  procure  great  bodily  harm  and  mischief  to  be  done  to  the 
said  C.  D.  and  to  incite  and  provoke  him  the  said  C.  D.  unlawfully 
to  fight  a  duel  with  and  against  the  said  E.  F.,  afterwards,  to  wit, 
on  the  same  day  and  year  aforesaid,  with  force  and  arms,  at  B., 
aforesaid,  in  the  county  aforesaid,  did  unlawfully,  wickedly,  and 
maliciously  deliver,  and  cause  to  be  delivered,  a  certain  written 
challenge,  as  from,  and  on  the  part,  and  by  the  desire  of  the  said 
E.  F.,  to  the  said  C.  D.  unlawfully  to  fight  a  duel  with  and  against 

the  said  E.  F.,  which  said  last  mentioned  challenge  is 
[  *413  ]    as*  follows,  that  is  to  say,  (set  out  the  challenge,')  against 

the  peace  of  our  said  Lord  the  King,  his  crown  and 
dignity. 
Third  Count— for  provoking  and  inciting  the  Prosecutor  to  Fight. 

That  the  said  A.  B.  being  such  evil-disposed  person,  and  distur- 
ber of  the  peace  of  our  said  Lord  the  King,  as  aforesaid,  and  in- 
tending to  procure  great  bodily  harm  and  mischief  to  be  done  to  the 
said  C.  D.  and  to  incite  and  provoke  him  the  said  C.  D.  unlawfully 
to  fight  a  duel  with  and  against  the  said  E.  F.  afterwards,  to  wit,  on 
the  same  day  and  year  aforesaid,  with  force  and  arms,  at  B.,  afore- 
said, in  the  county  aforesaid,  did  unlawfully,  wickedly,  and  malici- 
ously provoke  and  incite  the  said  C.  D.  (in  the  peace  of  God  and 
our  said  Lord  the  King  then  and  there  being,)  unlawfully  to  fight 
a  duel  with  and  against  the  said  E.  F.,  against  the  peace,  &c. 


22.     Information  for  Challenging  and  Posting. 

That  A.  B.,  late  of,  &c.  Esquire,  being  a  person  of  a  turbulent, 
wicked  and  malicious  'disposition,  and  not  having  the  fear  of  God 
before  his  eyes,  but  being  moved  and  seduced  by  the  instigation  of 
the  devil,  and  wickedly  and  maliciously  intending,  as  much, as  in  him 
lay,  not  only  to  terrify  and  affright  one  C.  a  good  and  peaceable 
subject  of  our  said  Lord  the  King,  but  also  to  kill  and  murder  him, 
heretofore,  to  wit,  on,  &c.  with  force  and  arms,  at,  &c.  unlawfully 


PRECEDENTS— IXPK  T.M BNTS.  413 

and  wickedly  did  provoke  and  challenge  the  said  C.  to  fight  a  duel 
against   him  the   Baid  A.  15.    with  sword  and   pistol-;  and  the  said 

of  our  said  Lord  the  King,  giveth  the  Court  here  further  to 

understand  and  be  informed,  that  the  said  0.  having  then  and  there 
refused  to  fight  with  the  said  A.  I!,  in  pursuance  of  such  kicked 
and  unlawful  challenge  last  aforesaid,  In-  the  said  A.  15. 
for  the  'completing  his  aforesaid  evil  and  wicked  purpose  |  *414  ] 
and  design,  and  further  to  provoke  ami  incite  the  said  C. 
to  fighl  a  duel  against  him  the  said  A.  B.  in  the  manner  aforesaid, 
afterward-,  to  wit.  on  the  same  day  ami  year  aforesaid,  at  (\  afore- 
said, in  the  county  aforesaid,  did  wickedly  and  maliciously  place, 
stick  up,  ami  upon,  and  caused  to  be  placed,  stuck  up.  ami  exp 
to  public  view,  to  wit,  on  the  market-house  in  C.  aforesaid,  a  cer- 
tain paper  writing,  with  the  name  of  him  the  said  A.  B.  thereunto 
subscribed,  containing  certain  scurrilous  and  abusive  matter  against 
the  said  C.  of  the  tenor  following,  that  is  to  say,  "  Having  receiv- 
ed (meaning  thereby  that  the  said  A.  B.  had  received,)  a  most 
ungentlemanlike  affront  from  C.  H.  esquire,  meaning  the  said  C.) 
I  (meaning  himself  the  said  A.  B.)  distinguish  him  (moaning  the 

said  C.)  thus,  that  none  may  doubt  the  individual  man  of ,  in 

the  county  of  M.  he  (again  meaning  the  said  C.)  having  in  the  most 
cowardly  manner  refused  to  give  me  (meaning  himself  the  said  A. 
B.)  the  satisfaction  due  to  a  gentleman,  I,  (meaning  himself  the  said 
A.  15.)  here  in  the  sight  and  for  the  information  of  his  countryman, 
post  him,  (meaning  the  said  C.)  and  declare  him  (again  meaning 
the  said  C.)  to  be  a  dirty,  cowardly,  insolent  fool,  as  such,  I  (mean- 
ing himself  the  said  A.  B.  )  will  ever  treat  him,  (meaning  the  said 
C.)  A.  B.  of  B.  in  the  county  of  M,"  to  the  great  damage  and  terror 
of  him,  the  said  C.  IT,  and  against  the  peace  of  our  said  Lord  the 
King,  his  crown  and  dignity. 


23.  Indictment  for  Drawing  in  Effigy  the  Collectors  of  the  Assessed 
Taxes,  in  pursuance  of  a  Conspiracy. 

That  A.  B.  late  of  <kc.  laborer,  C.  D.  late  of  the  same  place, 
laborer,  <fec.  being  respectively  persons  of  evil,  envious,  and  wicked 
minds,  and  of  mosUnalieious  dispositions,  and  maliciously 
and  unlawfully  devising  'and  intending  to  injure  and  [  *415  ] 
aggrieve  one  B.  F.  gentleman,  then  ami  there  being  an 
officer  ami  person  engaged  and  employed  in  certain  business  relating 
to  the  revenue  of  our  said  Lord  the  King,  to  wit,  an  inspector  of 
the  duties  on  horses  and  windows,  and  all  other  duties  under  the 
management  of  the  commissioners  for  managing  his  Majesty's  affairs 
of  taxes,  by  several  acts  granted  to  his  Majesty,  and  Gr.  H.  then 
and  there  being  an  officer  and  person  engaged  and  employed  in  cer- 
tain business  relating  to  the  revenue  of  our  said  Lord  the  King,  to 
wit,  an  officer  for  the  survey  and  inspection  of  the  several  and  re- 
spective rates  and  duties  upon  horses,  windows,  and  lights,  and  upon 
inhabited  houses,  and  upon  male  servants,  carriages,  horses,  mules, 
and  dogs,  by  certain  acts  of  parliament  granted  to  his  Majesty,  and 


415  APPENDIX. 

for  viewing  and  numbering  the  several  lights  or  windows  in  each 
house,  and  inspecting  and  examining  the  assessment  or  certificate 
thereof,  made  or  to  be  made  according  to  the  direction  of  certain 
acts  of  parliament,  and  for  doing  all  other  matters  by  the  statutes 
in  such  case  made  and  provided,  requisite  to  be  done  by  an  officer 
of  that  nature,  in  the  county  of ,  being  respectively  good,  peace- 
able, and  well-disposed  subjects  of  our  said  Lord  the  King,  and  to 
bring  them  into  great  contempt,  infamy,  hatred,  and  disgrace,  on,  &c. 
with  force  and  arms,  at,  &c.  unlawfully  and  maliciously  did  conspire, 
combine,  confederate,  and  agree  among  themselves,  and  together 
with  divers  other  evil  disposed  persons,  whose  names  are  unknown 
to  the  jurors  aforesaid,  to  traduce,  defame,  vilify,  and  bring  into  pub- 
lic hatred,  ridicule,  and  contempt,  the  said  E.  F.  and  G.  H.  as  such 
officers  as  aforesaid,  and  to  make,  and  cause  to  be  made,  a  great 
noise,  riot,  rout,  tumult,  and  disturbance,  at,  &c. ;  and  that  the  said 
A.  B.,  &c.  in  pursuance  of  and  according  to  the  conspiracy,  combina- 
tion, confederacy,  and  agreement  as  aforesaid  before  had,  afterwards, 
to  wit,  on,  &c.  with  force  and  arms,  at,  &c.  unlawfully  and  malici- 
ously did  put  and  place,  and  cause  and  procure  to  be  put  and  placed, 
two  figures  or  effigies,  the  said  effigies  or  figures  being  intended  to 

represent  the  said  E.  P.  and  G.  H.  in  a  certain  cart ; 
[  *416  ]    and  then  and  there  unlawfully  did  *by  and  with  a  certain 

horse,  draw,  and  cause  to  be  drawn,  the  said  cart  with 
the  said  effigies  so  put  and  placed  therein,  and  exposed  to  public 
sight  and  view,  in,  through,  and  along  divers  public  streets  and  com- 
mon highways  there,  and  also  before  and  near  the  dwelling-house 
of  the  said  E.  F.  and  dwelling-houses  of  divers  liege  subjects  of  our 
said  lord  the  king  there  situate,  and  in  the  presence,  sight,  and  view 
of  divers  liege  subjects  of  our  said  lord  the  king,  in  the  manner  in 
which  criminals  are  usually  conveyed  to  the  place  of  execution ; 
and  did  then  and  there,  during  all  that  time,  toll,  and  cause  to  be 
tolled,  a  certain  large  bell  of  and  belonging  to  a  certain  church  at 

— ,  and  made  and  caused  to  be  made  a  great  noise,  riot,  rout, 

and  tumult,  and  disturbance  and  utter  and  cause  to  be  uttered  divers 
malicious  and  opprobrious  words  and  speeches,  defaming  and  vilify- 
ing the  said  E.  F.  &c.  and  among  others  the  opprobrious  words  and 
speeches  following,  that  is  to  say,  "  Damn  the  dog  taxers,  (meaning, 
&c.)  damn  the  window  peepers  (meaning,  &c.)  ;"  and  beat  and 
cause  to  be  beaten  the  heads  and  faces  and  other  parts  of  the  said 
effigies  and  figures,  and  did  afterwards,  to  wit,  on,  &c,  at,  &c.  cast 
and  throw  the  said  effigies  or  figures  into  a  certain  river  or  stream 
of  water,  to  denote  and  represent  the  death  and  drowning  of  them 
the  said,  &c.  and  did  then  and  there,  immediately  after  such  casting 
and  throwing,  ring,  and  cause  to  be  rung,  divers  bells  in  and  be- 
longing to  a  certain  church  at,  &c.  in  the  manner  in  which  the  said 
bells  were  used  to  be  rung  on  joyful  occasions  ;  and  did  afterwards, 
to  wit,  on,  &c.  at,  <fec.  compose,  write,  and  publish,  and  cause  and 
procure  to  be  composed,  written,  and  published,  a  certain  malicious 
and  scandalous  libel,  containing,  amongst  other  things  therein,  divers 


PRECEDENTS— INDICTMENTS.        H6 

scandalous  and  malicious  matters  and  things,  of  and  concerning  the 
said,  &c.  to  the  tenor  and  effect  following,  that  ie  to  say,  "These 

two  unfortunate  malefactors  (meaning,  &c. )  were  drawn  to  the  place 
of  execution,  attended  by  that  able  priest,  J.  W. :  on  their  arrival. 
E.  P.  (meaning,  &c.)  stood  op,  and  with  uplifted  hande  addressed 
the  spectators  us  follows,— *  Fellow  mortals,  you  have 

now  presented  to  *your  view,  one  of  the  most  nnfortu-    [  *41i    ] 

nate  of  men  (meaning,  Ac.)  whose   villainy  has  brought 

him  to  the  most  detestable  of  all  deaths!    I  (meaning ,  ave 

been  the  banc  of  social  comfort  to  many:  you  now  se- 
quences of  incorrigible  roguery  ;  I  (meaning,  &c.)  have  rid  numbers 
of  the  golden  dropsy  which  subsists  near  the  purse,  in  order  to  add 
to  my  own  disease,  which  will  soon  terminate  my  existence.     To 
what  dark  abyss  am  I  hastening!  to  unknown  regions  and  pain--  yet 
unfelt  by  me  !     Ah  !  too  late  do  I  repent ;  the  time  is  come  ;  I  must 
answer  to  the  call  of  justice  ;  had  I  been  just  and  true,  half  honest 
would  have  served  me.     I  claim  forgiveness  of  you,  though  I  have 
wronged  you  all  alike,  with  this  my  vile  associate,  (meaning,  &c.) 
partner  of  my  villainies,— sharer  of  my  gains;  words  are  wanting 
to  convince  you  how  my  conscience  goads  me ;  Heaven  has  now 
poured  down  curses  on  my  head.'     N.  13.     This  speech  was  answer- 
ed by  some  pretty  loud  huzzas.     The  other  miscreant  (meaning, 
&c.)'then  stood  up,  and  with  most  beastly  howl  thus  addressed  the 
delighted  spectators, — '  Ungrateful  wretches  you  now  behold  a  man 
(meaning,  &c.)  in  the  face  of  death,  whose  courage  dares  to  call 
you  by  your  proper  titles.     You  say,  I  am  of  notorious  ploughshare 
and  buckle  memory.     Yes,  I  am  (meaning,  &c.)  ;  my  conduct  as 
such  commanded  your  esteem ;  I  (meaning,  &c.)  took  but  20s.  and 
gave  you  two ;  but  1  am  now  foiled  in  my  attempt  to  strip  you  of 
all  within  your  shallow  purses.     With  an  eternal  chaos  before  my 
eyes,  I  tell  you,  we  (meaning,  &c.)  have  shared  £1500;  tin-  1  say, 
to  gripe  your  empty  pockets.     Had  we  (meaning,  &c.)  lived,  your 
persons  should  have   been  in  pawn  to  glut  our  empty  coffers.     Now 
farewell,  we   shall  meet   anon,  to  compliment  each  other  on  our 
rogueries.     I  (meaning,  Ax.)  bid  you  all  farewell.'     This  hardened 
villain's  (  meaning  the  said,  &c.)  speech  was  answered  by  much  hiv- 
ing and  dapping  of  hands.     They  (meaning,  Arc.)  were  then  drown- 
ed, drawn,  quartered, and  dissected  ;  the  joyful  ceremony  was  finish- 
ed by  1m  11  ringing,  and  the  sudden  transition  of  every  one's  counte- 
nance from  that  of  a  melancholy  to  a  joyful  aspect.     Jem- 
my  the   priest,  endeavored   to   convert   them  by 'sundry    [  *418   ] 
hard  blows  and   divers  bruises.      Long  live  tin'  king."- — 
To  the  great  scandal,  infamy,  and  damage  of  the  said,  &c.  to  the 
evil  example  of  all  others,  and  against  the  peace  of  our  said  lord 
the  king,  his  crown  and  dignity. 

'In 'I  Count. — And  the  jurors  aforesaid,  on  their  oath  aforesaid, 
do  further  present,  that  the  said,  Ac.  being  respectively  such  per- 
sons as  aforesaid,  and  maliciously  and  unlawfully  devising  and  in- 
tending to  injure  and  aggrieve  the  said,  Ac.   then  and  there  being 


418  APPENDIX. 

respectively  good,  peaceable,  and  well-disposed  subjects  of  our  said 
Lord  the  King,  and  to  bring  them  into  great  contempt,  infamy, 
hatred,  and  disgrace  on,  &c.  with  force  and  arms,  at,  &c.  unlaw- 
fully and  maliciously  did  conspire,  combine,  confederate,  and  agree 
among  themselves,  and  with  divers  other  evil-disposed  persons  whose 
names  are  unknown  to  the  jurors  aforesaid,  to  traduce,  defame,  vil- 
ify, and  bring  into  public  hatred,  ridicule,  and  contempt,  the  said, 
&c.  and  the  characters  and  conduct  of  them  the  said,  &c.  respec- 
tively, and  to  make,  and  cause  to  be  made,  a  great  noise,  riot,  rout, 
tumult,  and  disturbance,  at,  &c.  aforesaid ;  and  that  the  said  C.  D. 
&c.  in  pursuance  of  and  according  to  the  said  conspiracy,  combi- 
nation, confederacy,  and  agreement,  so  as  aforesaid  had  afterwards, 
to  wit,  on,  &c.  with  force  and  arms,  at,  &c.  aforesaid,  unlawfully 
and  maliciously  did  put  and  place,  and  cause  and  procure  to  be  put 
and  placed,  &c.  (asin first  count.} 

3rd  Count. — Intending  to  injure  the  said,  &c.  as  such  officers,  as 
aforesaid,  &c.  and  to  make,  and  cause  to  be  made,  a  great  noise, 
&c.  (as  before  in  first  count,)  unlawfully  and  maliciously  did  put 
and  place,  &c.  (as  in  the  first  count,  but  more  generally,  and  omit- 
ting all  the  opprobrious  vjords,  except  damn  the  dog  taxers  and 
window  peepers.) 

Uh  Count. — Same  as  third,  except  in  the  description  of  E.  F. 
&c.  as  officers. 

*23.  Indictment  for  a  Libel  on  an  Individual. 

That  C.    D.  late  of ,  being  a  person  of  an  envious,  evil, 

and  wicked  mind,  and  of  a  most  malicious  disposition, 
[  *419  ]  and  wickedly,  maliciously,  and  unlawfully  minding,  con- 
triving and  intending,  as  much  as  in  him  lay,  to  injure, 
oppress,  aggrieve,  and  vilify  the  good  name,  fame,  credit,  and  rep- 
utation of  A.  B.  a  good,  peaceable,  and  worthy  subject  of  our  said 
Lord  the  King,  and  to  bring  him  into  public  scandal,  hatred,  infamy, 
and  disgrace,  (or  into  public  scandal,  contempt,  ridicule,  and  dis- 
grace, &c.  according  to  the  nature  of  the  libel,)  with  force  and 
arms,  on,  &c.  at,  &c.  of  his  great  hatred,  malice,  and  ill-will  to- 
wards the  said  A.  B.  wickedly,  maliciously,  and  unlawfully,  did  com- 
pose and  write,  and  cause  and  procure  to  be  composed  and  written, 
a  certain  false,  scandalous,  malicious,  and  defamatory  libel,  of  and 
concerning  the  said  A.  B.  containing  the  false,  scandalous,  mali- 
cious, and  defamatory  words  and  matter  following,  of  and  concerning 
the  said  A.  B.,  that  is  to  say,  (set  out  a  copy,  with  proper  innuendos 
to  explain  the  meaning,  if  they  be  necessary,)  which  said  scandalous, 
malicious,  and  defamatory  libel,  he  the  said  C.  D.  afterwards,  to  wit, 
on,  &c.  at,  &c.  wickedly,  maliciously,  and  unlawfully  did  send  (a) 

(a)  Where  the  libel  merely  reflects  on  a  profession,    trade,  or  business;  the  indict  - 

person  in  his  profession,  trade,  or  business,  ment   ought  to  allege  an  intent  to  provoke 

and  the  publication  is  confined  to  that  per-  and  excite  the  prosecutor  to  a  breach  of  the 

son,  it  is  not  sufficient  to  aver  an  intention  peace.    R.  v.   Wegener,  1  Starkie's  C.  54-3; 

to  disparage  and  injure  the  party  in  his  supra  vol,  II  ,  321. 


PRECEDENTS— INDICTMENTS.  419 

and  cause  to  be  sent  to  one  E.  F.  in  the  form  of  a  letter,  directed 
to  the  said  E.  P.  and  did  thereby   then  and   there  unlawfully,  wick- 
edly, ami  maliciously  publish,  ami  cause  to  1'"  published,  the  said 
libel,  to  the  great  damage,  disgrace,  scandal,  and  infamy ofthi 
A.  B.  and  against  tin-  peace,  &c. 

•1ml  ('mutt. — That  the  said  C.  D.  being  such  envious,  evil,  wick- 
ed, and  malicious  person, and  wickedly,  maliciously,  and  unlawfully 
minding,  contriving,  and  intending,  as  aforesaid,  t"  wit, 
on  the  same  day  "ami  year  aforesaid,  with  furce  and  [  *420  ] 
arms,  at,  ifcc.  of  his  great  hatred,  malice,  and  ill-will  to- 
wards the  said  A.  D.  wickedly,  maliciously,  and  unlawfully  did 
write  (or  print)  and  publish,  and  cause  and  procure  to  be  written 
(or  printed)  and  published  a  certain  other  false,  BCandalous,  mali- 
cious, and  defamatory  libel,  of  and  concerning  the  said  A.  B.  con- 
taining the  false,  scandalous,  malicious,  and  defamatory  words  and 
matter  following,  of  and  concerning  the  said  A.  B.  that  is  to  say, 
(set  out  the  libel  and  conclude  as  before.*) 

Zrd  Count. — For  publishing  generally. 


24.  Indictment  for  exposing-  to   Sale  and  Public  View  an  obscene 

print  (b). 

That  A.  B.  late  of,  &c.  being  a  scandalous  and  evil  disposed  per- 
son, and  not  having  the  fear  of  God  in  his  heart,  but  devising,  con- 
triving, and  intending  the  morals  as  well  of  youth  as  of  divers  other 
liege  subjects  of  our  said  Lord  the  King,  to  debauch  and  corrupt, 
and  to  raise  and  create  in  their  minds  inordinate  and  lustful  desires, 
on,  <fcc.  with  force  and  arms,  at,  <fcc.  in  a  certain  open  and  public 
shop  of  him  the  said  A.  15.  there  situate,  unlawfully,  wickedlv,  ma- 
liciously, and  scandalously,  did  publish,  sell,  and  utter  to  one  C.  D. 
a  liege  subject  of  our  said  Lord  the  King,  a  certain  lewd,  wicked, 

scandalous,  infamous,  and  obscene    print,  on  paper,  entitled 

,  representing,  etc.  (as   in  the  print,)  and   which  said   lewd. 

wicked,  scandalous,  infamous,  and  obscene  print,  on  paper,  was  con- 
tained in  a  certain  printed  pamphlet,  then  and  there  uttered  and 

sold  by  him  the  said  A.  B.  to  the  said  C.  D.  entitled  ,  to  the 

manifest  corruption  and  subversion  of  youth,  and  other  liege  subjects 
of  our  said  Lord  the  King,  in  their  manners  and  conversation,  in 
contempt  of  our  said  Lord  the  King  and  his  laws,  and  against  the 
peace,  &c. 

In  a  second  Count,  allege  the  publication  generally,  omitting  that 
it  was  contained  in  any  pamphlet,  Ac. 


{b)  As  to  this  offence,  see  vol.  II.  p.  155. 


INDEX. 


A. 

ABILITY  : 

charging  the  want  of,  vol.  i.  page  119. 
ABUSE : 

mere  words  of,  not  actionable,  i.  30. 
ACTION  : 

for  slander,  grounds  of,  i.  Prel.  Dis.  xiii. 
ADJECTIVE: 

when  words  actionable,  i.  72. 
ADMINISTRATION  OF  JUSTICE: 

publications  reflecting  on,  ii.  2C0. 
ADMISSION: 

where  it  supercedes  proof  of  special  character,  ii.  10,  11. 
AGGRAVATION : 

evidence  in,  ii.  57. 
AFFIDAVITS: 

in  case  of  information,  see  Information,  ii.  285. 
ALFRED : 

law  of,  Prel.  Dis.  xl. 
ALGERNON  SIDNEY: 

proof  against,  ii.  20. 
AMBASSADOR: 

libel  on,  ii.  216. 
AMBIGUITY: 

different  kinds  of,  i.  46. 
APOTHECARY: 

words  of,  i.  136. 
APPLICATION  OF  WORDS: 

a  question  for  the  jury,  ii.  320. 
ATHENS: 

law  of.  in  respect  of  defamation,  Prel.  Dis.  vii. 
ATTACHMENT: 

proceeding  by,  when  allowable,  ii.  259. 

contemptuous  words  spoken  in  presence  of  magistrates,  ii;  260. 

by  what  courts  granted,  ii.  261. 

where  an  affidavit,  ii.  262. 
ATTACHMENT: 

how  executed,  ii.  265. 

for  contempt  in  publishing  proceedings  of  court,  ii.  265. 

proceeding  on,  after  arrest  of  party,  ii.  266. 
Vol.  II.  55 


422  INDEX. 

ATTACHMENT: 

examination  on  interrogatories,  ii.  256. 
ATTEMPT : 

to  commit  a  crime,  charge  of,  actionable,  i.  33. 
ATTORNEY : 

words  of,  in  his  profession,  i.  126,  131,  132. 

evidence  of  being,  ii.  2. 

not  bound  to  prove  taking  out  of  certificate,  ii.  6,  7. 
AUGUSTUS: 

libels  on  the  emperor,  Prel.  Dis.  cv. 
AVERMENT: 

See  Declaration. 

B. 

BARRISTER: 

words  of,  i.  126,  136. 
BASTARDY: 

words  of,  i.  132. 
BISHOP: 

words  of,  where  cognizable,  ii.  125. 
BLASPHEMY: 

indictment  for,  ii.  130. 

grounds  of,  considering  it  to  be  a  temporal  offence,  ii.  131. 
opinion  of  Michaelis,  ii,  131. 

necessity  for  considering  it  to  be  a  temporal  offence,  ii.  133. 
in  what  the  offence  consists,  ii.  136. 
libels  against  Christianity,  ii.  139. 
*    limitation  of  the  offence,  ii.  139. 
extent  of  the  offence,  ii.  143. 

malicious  intention  essential  to  the  offence,  ii.  147. 
how  evidenced,  ii.  147. 
legislative  provisions,  ii.  148. 

st.  1  Ed.  6,  c.  1,  ii.  148. 
1  Eliz.  c.  1,  s.  14,  ii.  148. 
1  Eliz.  c.  2,  ii.  148. 
13  Eliz.  c.  12,  ii.  149. 
3  J.  1,  c.  21,  ii.  149. 
9  &  10  W.  3,  c.  32,  ii.  149. 
53  G.  3,  c.  160,  s.  2,  ii.  150. 
BLOODSUCKER: 

imputation  of  being  one,  i.  87. 
BOOKSELLER: 
words  of  a,  i.  141. 
liability  of,  ii.  31. 

presumption  of  knowledge  by,  ii.  61. 
BORTHWICK: 

able  defence  of  the  law  of  Scotland  by,  Prel.  Dis.  lvn. 
BOUNDARIES: 

legal,  necessary  that  they  should  be  well  defined,  Prel.  Dis.  xxx. 
BRACTON : 

law  of  England,  stated  by,  Prel.  Dis.  xl. 
copied  largely  from  the  Institutes,  ib.  clxv. 
BREWSTER: 

conviction  of,  ii.  162. 


INDEX.  423 

BROWN'S: 

case,  ii.  173. 
BROWNE,  Dr. 

conviction  of,  ii.  163. 
BURDETT: 

Sir  Francis's  case,  ii.  205. 
BURGUNDIANS: 

laws  of,  Prel.  Dis.  viii. 

C. 

CANUTE: 

law  of,  Prel.  Dis.  xl. 
CARICATURE: 

actionable,  i.  172,  3. 

indictable,  i,  173. 
CARPENTER: 

words  of  a,  i.  140. 
CENSOR: 

of  the  press,  Dr.  Johnson's  opinion  concerning,  Prel.  Dis.  xcvn. 
CENSORSHIP: 

of  the  public  press,  Prel.  Dis.  xciii. 

whether  expedient,  ib.  cxv. 
CENSURE  : 

fear  of  public,  a  salutary  restraint,  rel.  Dis.  1. 
CHALLENGE : 

to  fight,  indictment  for,  ii.  208. 

to  fight,  on  account  of  money  won  at  play,  ii.  209. 
CHARACTER: 

how  connected  with  temporal  benefits,  Prel.  Dis.  xvi. 
General : 

foundation  of,  Prel.  Dis.  xviii. 

good,  but  presumptive  evidence  of  good  principles,  Prel.  Dis.  xix. 

effect  of  slight  suspicion  as  to,  ib.  xix. 

right  of  every  man  to,  ib.  xxii. 

communication  concerning,  essential   to  the  public  interests,  ib. 
xlviii. 

evidence  of  innocence,  ib.  lii. 

words  cease  to  be  so,   if" communications  concerning  character, 
were  to  be  prohibited,  ib.  lii. 
Special  : 

words  affecting,  when  actionable,  i.  117. 

of  servant,  the  giving,  when  a  defence,  i.  295. 

proof  of  application  of,  words  to,  ii.  52. 

evidence  by  servant  for  giving  false  character,  ii.  58. 

of  plaintiff,  when  admissible  in  evidence,  ii.  60. 

of  plaintiff  in   action  for  malicious  prosecution,  when  admissible, 
ii.  81.  ..     . 

of  plaintiff  inaction  for  slander,  where  impeachable,  ii.  88. 

general  evidence,  admissible,  ii.  88. 

evidence  of  particular  facts,  not  admissible,  ii.  90. 
CHEATING: 

imputation  of,  i.  87. 
CHRICHLEY: 

prosecution  of,  ii.  212. 


424  INDEX. 

CIVIL  REMEDY: 

grounds  of  action,  i.  1, 

falsity  essential,  i.  7. 

injurious  consequence  essential,  i.  9. 

damage  may  be  either  in  law,  or  in  fact,  i.  10. 
CLARKE: 

conviction  of,  ii.  188. 
CLERGYMAN: 

words  of,  ii.  126, 
CLIPPING  OF  MONEY. 

charge  of,  when  actionable,  i.  93,  94. 
COBBETT,  Wl:  , 

conviction  of,  ii.  191. 
COKE,  LORD: 

his  notions  of  the  perfection  of  the  law  of  England,  Prel.  Dis. 
clxii. 
COLLECTION  OF  LIBELS: 

whether  indictable,  ii.  229,  230. 
COLLOQUIUM: 

see  declaration,  i.  383. 

proof  of,  ii.  51. 
COMMON  FAME : 

formerly  a  ground  for  putting  a  man  on  his  trial,  Prel.  Dis.  xv. 
COMMON  LAW: 

system  of  observations  on,  Prel.  Dis.  clxi. 
COMMUNICATION: 

abuse  of  faculties  of,  Prel.  Dis.  iii. 
.  by  means  of  the  press,  ib.  iv. 

necessity  for  laws  to  restrain,  ib.  vi. 

such  restraints  common  to  all  laws,  ib.  vi. 

distinction  as  to  mode  of,  by  the  law  of  England,  ib.  lxxii. 
COMMUNICATION: 

particulaf  mode  of,  not  essential  to  title  to  damages,  ib.  lxix. 

distinction  as  to  the  mode  of,  by  the  civil  law,  ib.  lxx- 

what  essential  to,  penal  liability,  ib.  cxxxv. 

on  grounds  of  public  policy,  ib.  cxxxvi. 

ground  of  distinction  between   oral  and  written  publications  for 
criminal  purposes,  ib. 
CONCLUSIONS: 

ought  not  to  be  drawn  generally,  from  cases  of  particular  hard- 
ship, ib.  liv. 
CONFESSION: 

of  publication,  ii.  39. 
CONSTABLE: 

evidence  of  being,  ii.  3- 
CONSTITUTION: 

publications  against,  ii.  160. 

Ld.  Loughborough's"  observation's,  ii.  110. 

giounds  of  the  offence,  ii.  161. 

stat.  13  Eliz.  c.  1,  ii.  161 ; 
6  Ann.  c.  7,  s.  7,  ii.  161 ; 
13  C.  2,  c.  1,  ii.  163. 
CONTEMPTS: 

against  the  king's  judges,  ii.  194. 


INDEX.  425 

CONTEMPTS : 

in  what  the  offence  consists,  ii.  194. 

of  judges  of  superior  courts,  ii.  195. 

of  inferior  magistrates,  ii.  195. 

when  words  of,  are  indictable,  ii.  195,  196. 

binding  to  good  behavior,  ii.  200. 
CONTUMELY:  n  ^     ,      ,  _    , 

not  a  substantive  ground  of  action,  by  the  law  of  England,  Prel. 

Dis.  lv. 
and  insult,  the  foundation  of  the  action,  according  to  the  Roman 
law,  Prel.  Dis.  xxix. 
CONVICIUM: 

of  the  Roman  law,  what,  Prel.  Dis.  lxxi. 
CORNELIAN  LAW: 

penalty  imposed  on  a  libeller  by,  Prel.  Dis.  xxxvh. 
CORN FACTOR: 

words  of,  i.  127. 
COSTS: 

provision  of,  st.  21,  J.  1,  c.  16,  ii.  1 13. 
construction  of  this  st-  ib. 
does  not  extend  to  Scan.  Mag.  ib. 
nor  to  action  for  special  damage,  ib. 
where  words  are  in  themselves  actionable,  ii.  114. 
in  the  case  of  different  counts,  some  actionable,  others  not,  ii.  115. 
damages  under  a  writ  of  inquiry,  ib. 
inferior  courts,  ib. 
st.  58  G.  3,  c.  30,  s.  2,  ib. 
22  &  23,  c.  2,  s.  9,  ib. 
certificate  under,  ii.  116. 
of  information,  see  Information. 
COUNSEL: 

speech  by,  when  actionable,  i.  285. 
COUNTY: 

proof  of  publication  within,  ii.  35. 
COZENING: 

charge  of,  i,  87. 
CREMENTIUS  CORDUS: 
charge  against,  Prel.  Dis.  cv. 
his  defence,  ib. 
voluntary  death,  ib. 
CRIME  : 

imputation  of,  generally  actionable,  i.  11. 

nature  of  the  offence  imputed,  ib. 

doubts  formerly  prevailed  on  the  subject,  i.  11. 

reason  for  this,  i.  12. 

to  be  actionable,  must  be  of  an  offence  punishable  in  a  temporal 

court  of  criminal  jurisdiction,  i.  21. 
must  be  of  a  fact,  i.  23. 

general  terms  of  abuse,  not  actionable,  i.  24. 
imputation  of  offence,  merely  spiritual,  not  actionable,  ib. 
secus,  if  also  punishable  in  temporal  courts,  i.  28. 
CRIMINAL  CHARGE :  , 

imputation  of  criminal  solicitation  to  commit  a  lelony,  i.  33. 

55* 


426  INDEX. 

CRIMINAL  CHARGE: 

lo  commit  a  misdemeanor,  i.  36. 

charge  of  misdemeanor,  i.  37. 

of  being  the  author  of  a  libel,  ib. 

of  keeping  a  disorderly  house,  ib. 

subornation  of  perjury,  i.  38. 

receiving  stolen  goods,  ib. 

selling  unwholesome  beer,  i.  39. 

of  any  indictable  offence,  ib. 

of  being  a  regrator,  i.  40. 

a  common  barrator,  ib. 

of  maintaining  a  suit,  ib. 

rule  laid  down  by  Lord  C.  J.  De  Grey,  i.  41. 

general  inference  from  the  authorities,  i.  43. 

manner  of  the  imputation,  i.  44. 

words  must  be  capable  of  an  offensive  sense,  i.  45. 

must  have  been  used  in  that  sense,  i.  45. 

rule  where  words  are  ambiguous,  i.  46,  7. 

former  doctrine  as  to  the  benignior  sensus,  i.  47. 

that  doctrine  now  exploded,  i.  50. 

illustrations,  ib.  51. 

general  rule  laid  down  by  Lord  Holt,  i.  52. 

rule  as  to  construction  after  verdict,  i.  53. 

present  rule,  i.  54,55,  56,  57,  60. 

words  to  be  actionable  must  impute  an  act  done,  i.  62. 

imputation  of  an  act  may  be  inferred  from  indirect  words,  ib.  63. 

from  words  of  suspicion,  i.  63. 
-  words  of  comparison,  i.  68. 

words  of  hearsay,  ib. 

words  of  interrogation,  i.  69. 

words  disjunctive,  i.  70. 

words  adjective,  i.  71,  72. 

use  of  participle,  i  72. 

words  which  scandalize  a  person  in  trade,  &c.  i.  73. 

words  ironical,  ib. 

words  in  general,  from  which  an  act  may  be  inferred,  i.  73,  74,  75, 
76. 

words. imputing  intention  only,  i.  76. 

words  imputing  impossible  offence,  i.  77. 

words  are  actionable,  notwithstanding  their  inconsistency,  i.  78. 

or  grammatical  impropriety,  i.  79. 

criminal  quality  of  the  act  charged,  i.  79. 

words  of  known  legal  import,  ib. 

are  actionable  though  they  do  not  particularize  circumstances,  ib. 

charge  of  murder,  actionable  without  proof  that  the  person   is 
dead,  i.  80. 

rule  as  to  particularity  exploded,  i.  85. 

action  lies,  in  respect  of  general  imputation,  ib. 

for  the  words  traitor,  murderer,  thief,  sheepstealer,  i.  86. 

words  too  general,  when  to  support  an  action,  i.  87. 

forsworn  charge  of  being,  i.  88. 

stealing,  i.  91. 

doubtful  words  may  acquire  an  actionable  sense   from  circum- 
stances, i.  93. 


INDEX.  427 

CRIMINAL  CHARGE. 

and  shall  be  charged,  &c.  i.  94. 

I  will  make  thee  suffer  for  it,  ib. 

I  am  convinced  that  you  are  guiliy,  i.  95. 

words  of  desert,  i.  96. 

words  apparently  Innocent,  when  rendered  actionable,  i.  97. 

words  iii  foreign  Language,  i.  98. 

words  apparently  actionable,  may  be  explained  by  the  context, 
i.  99. 

words  actionable,  from  description  of  circumstances,  i.  101. 

wonls  charging  an  attempt  to  commit  a  crime,  i.  102. 

words  charging  a  solicitation  to  commit  a  crime,  i.  104. 

words  charging  a  preparation  to  commit  a  crime,  i.  106. 

application  of  the  words  to  the  plaintiff)  ii.  109. 

how  inferred,  i.  109, 110,  111. 
CRIMINAL  INFORMATION: 

practice  of  court  of  K.   B.  not   reconcilable    with  the    ordinary 
principles  recognized  by  the  law,  Prel.  Dis.  cxlvii. 
CRITICISM: 

literary,  to  what  extent  allowed,  i.  305. 
CUSTOMERS: 

loss  of,  ii.  63. 

D. 

DAMAGE : 

actual,  ought  not  to  be  essential  to  the  remedy,  Prel.  Dis.  xxvi. 
DAMAGES: 

right  to  compensation  for,  on  what  it  depends,   Prel.  Dis.   xlvi. 

once  recovered,  or  when  a  bar,  i.  208. 

occasioned  by  procurement,  not  the  subject  of  action,  ib. 

averment  of,  i.  436. 

see  declaration,  ib. 

special  averment  of,  i.  44  0. 

loss  of  marriage,  i.  441. 

where  it  involves  multiplicity,  i.  442. 

excessive,  new  trial  for,  ii.  105. 
DAMAGE   SPECIAL: 

proof  of,  ii.  62. 

when1  admissible,  ib. 

loss  of  marriage,  ib. 

loss  of  customers,  ii.  63. 

loss  of  prolits  hy  dissenting  preacher,  ii.  G3. 

loss  of  profits  at  place  of  public  amusement,  ii.  64. 

loss  of  profits  hy  minister,  ii.  63, 

of  place  (.if  public  amusement,  ii.  64. 

must  result  from  defendant's  act,  ib. 

must  he  the  natural  consequence  of  the  slander,  ib. 

refusal  to  deal  with  the  plaintiff]  ii.  65. 

injury  when  too  remote,  ib. 

recovery  of,  when  a  bar  to  future  action,  ii.  66. 

evidence  to  increase,  ih. 

evidence  of  an  action  for  malicious  prosecution,  ib. 

proof  of,  when  necessary,  ii.  60. 


428  INDEX. 

DATE: 

of  libel,  how  far  evidence,  ii.  38. 
DECEASED: 

person,  libel  on,  ii.  212. 
DECEIT: 

the  proper  foundation  of  the  action  for  damages,  Prel.  Dis.  xliv. 
may  consist  in  undeserved  commendation,  ib.  xlv. 
DECLARATION: 

in  general,  i.  356. 
DECLARATION. 

inducement,  i.  357. 
publication,  averment  of,  i.  358. 
of  words  in  foreign  language,  i.  361. 
statement  of  the  words,  ib. 
what  particularity  necessary,  i.  369. 
variance,  what  material,  ib. 
in  case  of  libel,  i.  376. 
application  of  matter  published,  i.  383. 
colloquium,  ib. 

application  of  the  words  to  the  plaintiff,  ib. 
extrinsic  circumstances,  averment  of,  when  necessary,  i.  391. 
mode  of  averment,  i.  392. 

extrinsic  circumstances,  when  unnecessary,  i.  393. 
averment  of  special  character,  i.  400. 
mode  of -averment,  i.  402. 
words  published  in  foreign  language,  i.  411. 
words  affecting  plaintiff  in  special  character,  413. 
'connection  of  the  words  with  extrinsic  facts,  i.  418. 
innuendo,  use  of,  i.  418. 
malice,  averment  of,  i.  433. 
falsity,  averment  of,  i.  433,  436. 
damage,  averment  of,  i.  439. 
special  damage  must  be  averred,  i.  440. 
for  a  malicious  prosecution,  i.  445. 

must  show  a  prosecution  instituted  and  determined,  i.  445. 
description  of  the  bill  or  indictment,  i.  446. 
of  the  court,  i.  446. 
of  the  charge,  i.  447. 
effect  of  variance  in  stating,  i.  449. 
determination  of  the  prosecution,  i.  447. 
the  damage  to  the  plaintiff,  i.  452. 
joinder  of  counts,  i.  443. 
DEFAMATION : 

form  of,  when  most  injurious,  Prel.  Dis.  xiii. 
false  testimony,  ib.  xiv. 
indirect  effect,  ib.  xv. 
DEFENDANT: 

evidence,  when  incumbent  on,  ii.  84. 
defence  by,  ii.  87. 
procurement  by  plaintiff,  ii.  87, 
evidence  for,  in  case  of  criminal  prosecution,  ii.  325, 
DEFENDANTS: 
joinder  of,  i.  354. 


INDEX.  429 

DELIVERY: 

of  sealed  libel,  whether  a  publication,  n.  42. 
DELOLMhl  : 

his  Essay  on  the  Constitution  of  England,  Prel.  Dis.  xcm. 

observations  on  the  censorship  of  the  press,  Lb. 

his  observation  on  the  effect  of  the  liberty  of  tho  press  in  Eng- 
land, ib.  cvi.  cvii. 
DEMURRER: 

Lord  Coke's  advice  as  to,  i.  491. 
DIPLOMA: 

proof  by,  when  necessary,  ii.  o — 9. 
DISCLOSURE: 

of  author's  name  at  time  of  publication,  effect  of,  ii.  248. 
DISCUSSION,  FREE  : 

privilege  of,  in  England,  Prel.  Dis.  c. 

advantages  of,  ib.  ci. 

observations  of  M.  Dclolme  upon,  ib.  c 

of  M.  Cottu,  ib.  cii. 

free  abuse  of  the  privilege,  ib.  cix. 
DISINHERISON: 

words  tending  to,  i.  142. 

limitation  of  the  action,  i.  142. 
DISORDER,  INFECTIOUS: 

words  imputing,  i,  113. 

when  actionable,  ib. 

ground  of  the  rule,  ib. 

limit  of  the  action,  i.  114. 
DRAMATIC  PERFORMANCES: 

restraints  on,  Prel.  Dis.  cxiv. 
DYER: 

words  of  a,  i.  139. 

E. 
EARL  MARSHALL: 

court  of,  ii.  127. 

before  whom  held,  ii.  127. 

prohibition  to,  ib. 
ECCLESIASTICAL  COURT: 

see  Prohibition,  117. 
EDGAR: 

law  of,  Prel.  Dis.  xl. 
EFFIGIES: 

carrying  of,  i.  173. 

riding  Skimmington,  i.  173. 
EGYPT: 

laws  of,  Prel.  Dis.  vii. 

singular  mode  of  trial  in,  ib.  ix. 
ENGLAND : 

law  of,  where  definite,  reel.  Dis.  xxxi. 

ground  of  remedial  action  by,  ib. 

differs  from  the  ancient  Roman  and  civil  law.  ib. 

distinction  between  oral  and  written  communication,  ib.  Ixxn. 

in  civil  cases,  ib. 

in  criminal  cases,  ib.  lxxiii. 


430  INDEX. 

EUTOPIA: 

of  Sir  T.  Moore,  Prel.  Dis.  xciii. 
EVIDENCE: 

of  special  character,  ii.  1. 
attorney,  ib. 
magistrate,  ib. 
peace  officer,  ib. 
constable,  ii.  3. 

excise  and  custom  house  office,  ib. 
physician,  ib.  3-^9. 
of  character  in  general,  ii.  7. 
of  prefatory  allegations,  ii.  12. 
of  publication,  ii.  12,  13. 

when  words  are  published  in  a  foreign  language,  ii.  12. 
on  an  indictment,  see  Indictment,  ii.  309. 
EXTRINSIC  FACTS: 

when  to  be  averred,  i.  392. 
omission  to  prove  when  fatal,  i.  405. 

F. 

FALSE  NEWS: 

provision  of  ancient  statutes,  as  to,  Prel.  Dis.  xli. 

writers  of,  punishable,  ii.  224. 
FALSITY: 

of  communication  essential  to  the  right  to  damages,  Prel.  Dis. 
xlviii. 

of  the  defamation  essential  in  principle  to  the  right  to  damages, 
ib.  xliv. 

essential  to  right  of  action  for  damages,  on  the  ground  of  policy, 
ib.  xlviii. 

of  communication,  whether  essential  to  criminal  liability,  ib.  cxix. 

of  the  imputation  in  civil  action,  averment  of,  i.  433,  436. 

see  Declaration — defendant's  knowledge  of,  i.  436. 

not  evidence  to  show  malice,  where  no  justification  pleaded, 
ii.  59. 
FEELINGS  : 

mere  injury  to,  not  a  substantive  ground  of  action,  Prel.  Dis.  lv. 
FIDES  VERI: 

use  of  the  terms  in  civil  law,  ib.  xxxvi. 
FILCHER,  COMMON: 

imputation  of  being  a,  i.  87. 
FINDER  OF  LIBEL: 

whether  punishable  for  possession,  ii.  227. 
FOREIGN  LANGUAGE  : 

declaration  for  slander,  published  in,  i.  411. 

proof  of  publication  of  words  in,  ii.  52. 
FORSWORN: 

imputation  of  being,  i.  88. 
FOX: 

his  observations  on  debate  on  the  Libel  Bill,  Prel,  Dis.  lxvii. 
FRANCE : 

provision  of  the  code  penal,  Prel.  Dis.  xxxiii. 

effect  of  the  Veritas  convicii,  ib.  xxxiv. 


INDEX.  431 

FRANCE: 

code  penal,  as  to  revelation  of  secrets  by  physicians,  Sec.  ID.  IX. 

FRIENDLY  SOCIETIES: 

law  of,  Prel.  Dis.  xii. 
FRANKLIN,  RICHARD  : 

conviction  of,  ii    188. 

FRAUD:  „    ,   «. 

ground  of  civil  action  for  damages,  Prel.  Dis.  xlvi. 

FUNDS,  PUBLIC: 

combining  to  raise  the  price  of,  ii.  221. 

G. 

GAZETTE: 

evidence  to  prove,  what,  ii.  309. 
GENERAL  ISSUE : 

what  is  evidence  under,  i.  453. 

sec  IMcti. 

in  what  cases  defendant  is  confined  to  this  plea,  i.  457 

GOVERNMENT: 

libel  on,  ii.  183, 

limitation  of  the  offence,  ii.  183,  184. 

Lawrence,  conviction  of,  ii.  187. 

Tutchin,  conviction  of,  ii.  186. 

Clarke,  John,  conviction  of,  ii.  188. 

Franklin,  Richard,  conviction  of,  ii.  188. 

Home,  conviction  of,  ii.  191. 

Cobbett,  conviction  of,  ii.  193. 

Fisher,  Lovel,  Gale,  Junes,  Burdett,  cases  of,  11.  194. 
GRAND  JURY  : 

presentment  by,  not  actionable,  l.  211. 

H. 

HAND-WRITING: 

proof  of  publication  by,  ii.  IS. 

proof  by  comparison  inadmissible,  ii.  20. 

evidence,  as  to,  by  persons  of  skill,  ii.  26. 

imitated  hand,  evidence- as  to,  ii.  26. 
HARRISON: 

conviction  of,  ii.  162. 
HARVEY,  WILLIAM: 

case  of,  ii.  181. 
HEARSAY:         '  .  ■  ..     M 

proof  on  replication  of  de  injuria  to  justification,  &C.  11.  KJJ 

HORACE: 

dialogue  with  Trebatius,  Prel.  Dis.  xxxvu. 

HORN!'. 

conviction  of,  ii.  191. 
HUSBAND  AM)    WIFE: 

words  of  a,  i.  141. 
HUSBANDMAN: 

words  of  a,  i.  141. 


432  INDEX. 

I. 

ILLEGAL  ACT: 

publications  exciting  to,  i.  207. 
ILLEGAL  OCCUPATION: 

action  for  slander,  in  respect  of,  not  maintainable,  ii.  87. 
INCONTINENCY: 

words  imputing  not  actionable  without  special  damage,  i.  198, 
199,  200,  201,  202. 

words  of,  ii,  122,  124. 
INDICTMENT:       . 

copy  of,  how  produced  and  proved,  ii.  67,  68. 

for  libel  on  memory  of  deceased  person,  ii.  322. 

mode  of  framing,  ii.  302. 

who  chargeable  as  principals,  ii.  302. 

averment  of  falsity  immaterial,  ii.  303. 

averment  of  extrinsic  facts,  ii.  303. 

when  necessary,  ii.  303. 

mode  of  averment,  ii.  303. 

averment  of  publication,  ii.  306. 

averment  of  intention,  ii.  306.     . 

evidence  on,  ii.  309. 

proof  of  introductory  averments,  ii.  309. 

by  a  gazette,  ii.  309. 

by  the  king's  proclamation,  ii.  310. 

of  publication,  ii.  312. 

by  confession,  ii.  313. 

proof  of  malice,  ii.  322. 
.evidence  for  defendant,  ii.  325. 
INFORMATION: 

proceeding  by,  ii.  272. 

kinds  of,  ii.  273. 

by  attorney-general,  ii.  273. 

in  what  cases  usually  filed,  ii.  273. 

granted  by  the  King's  Bench,  ii.  273. 

by  master  of  the  Crown  Office,  ii.  293. 

stat.  4  and  5  W.  and  M.  ii  274. 

granted  by  court,  when,  ii.  274. 

reflections  on  clergy,  ii.  274. 

on  course  of  justice,  ii.  274. 

publication  of  evidence  on  coroner's  inquest,  ii.  275. 

libel  reflecting  on  administration  of  justice,  ii.  275. 

on  a  body  of  men,  ii.  275. 

on  magistrate,  ii.  276,  277, 

on  naval  officer,  ii.  278. 

on  a  nobleman,  ii.  278. 

mayor  of  a  town,  ii.  278. 

case  of  Cock  Lane  ghost,  ii.  279. 

not  essential  that  the  libel  should  charge  a  criminal  act,  ii.  280. 

must  be  of  a  personal  nature,  ii.  280. 

malice  essential,  ii.  281,  282. 

rules  to  be  observed  on  application  for,  ii.  284. 

applicant  must  waive  right  of  action,  ii.  284. 

must  be  promptly  made,  ii.  285. 


INDEX. 

INFORMATION: 

not  necessary  that  all  reflected  on  should  join,  ii.  285. 

affidavits  on  application  must  not  be  entitled,  ii.  276. 

affidavits  on  showing  cause  may  or  may  not  be  entitled,  ii.  286. 

affidavits  after  rule  made  absolute  must  he  entitled,  ii.  2-0. 

affidavits  at  nisi  prius,  when  sufficient,  ii.  286. 

must  show  the  application  of  the  libel,  ii  286. 

and  the  fact  of  publication  by  the    party   proceeded   against,    ii. 
286,  287. 

exculpatory  affidavit  necessary,  ii.  287. 

exceptions,  ii.  288. 

affidavits  in  confirmation,  ii.  289. 

information  grantable,  though  the  affidavits  be  contradictory,    b. 

costs  of  application,  ii.  291. 

joint  information  not  grantable  on  distinct  rules,  ii,  291. 

provisions  of  stat.  4.  and  5  W.  and  M.  c.  18,  s.  2.  ii.  291. 
INNUENDO: 

use  of,  i.  418. 

where  necessary,  i.  418. 

office  of,  i.  421. 

cannot  supply  the  want  of  a  colloquium. 

defective  consequence  of,  i.  426. 

when  repugnant  or  insensible,  i.  428. 

proof  of,  ii.  51. 

proof  of  a  fact  for  the  jury,  ii.  51. 

where  words  are  published  in  a  foreign  language,  ii.  51. 
INQUIRY: 

proof  on  execution  of,  ii.  82. 
INSPECTOR  OF  FRANKS: 

evidence  by,  ii.  27. 
INTENTION: 

of  the  author  how  far  material  in  principle,  Prel.  Dis.  lxxi. 

in  the  abstract,  ib.  lxxiii. 

in  reference  to  circumstances,  ib.  lxxix. 

when  in  reference  to  the  real  motive  and  intention  of  the  author 
or  publisher,  ib.  lxxxiv. 

honest,  where  a  defence  to  a  civil  action,  ib.  Jxxxv. 

doctrine  of  the  law  of  England  on  this  point,  ib.  lxxxvi. 

of  the  law  of  Scotland,  ib. 

how  far  essential  to  criminal  liability,  ib.  exxxviii. 

in  the  abstract,  and  without   reference    to    circumstances,  no  de- 
fence against  a  criminal  charge,  ib.  exxxix. 

what  necessary  to  constitute  an  indictable  publication,  ii.  240. 

when  specific  intention  is  material,  it  must   be  proved  as   laid,  ii. 
3:J:;,  324. 

to  apply  the  slander  to  plaintiff  or  prosecutor,  ii.  321. 

opinion  <if  witnesses  on  the  subject,  ib. 

what  sufficient  ground  for  such  opinion,  ii.  324. 

specific  malicious   intention,  when   to    be    averred,  i.  438.       Sek 

MALICE. 

1NTESTABILIS: 

meaning  of,  in  civil  law,  Prel.  Dis.  xxxvii. 
Vol.  II.  56 


434  INDEX. 

J. 

JUDiEA : 

laws  of,  Prel.  Dis.  x.  xi. 
JOINDER: 

see  parties,  i.  347. 

of  several  plaintiffs,  i.  347. 

of  husband  and  wife,  i.  348. 

of  defendants,  i.  354. 
JUDGMENT: 

arrest  of.  ii.  108. 

where  one  of  several  counts  is  defective,  ii.  108. 

count  on  words  spoken  at  different  times,  ii.  108. 

practice  as  to  venire  de  novo,  ii.  110. 
JUDGES: 

contempts  against,  ii.  195. 

of  superior  courts,  ii.  195. 

of  inferior,  or  magistrates,  ii.  195. 
JUDICIAL  PROCEEDING: 

justification  arising  from,  i.  240. 

judgment  of  court-martial,  i.  240. 

presentment  by  grand  jury,  i.  241. 

publication  made  in  the  course  of,  not  libellous,  i.  246. 

publication -of,  i.  257. 

not  justifiable,  when,  i.  263. 

in  respect  to  subject  matter,  i.  264. 

blasphemous  libels,  i.  264. 

ex  parte  criminal  proceeding,  i.  265. 
"  in  respect  of  the  manner,  i.  269. 

no  misrepresentation  allowable,  i.  270. 
JULIUS: 

libels  on  the  emperor,  Prel.  Dis.  cv. 
JURORS: 

are  to  judge  of  sense  and  meaning  of  the  alleged  libel,  ii.  327. 

of  the  fact  of  publication,  ib. 

of  the  occasion  of  publishing,  ii.  329. 

of  the  intention  of  publishing,  ib. 

effect  of  the  libel  act,  ii.  332. 
JURY: 

right  of,  to  deliver  a  general  verdict  at  common  law,  ii.  335. 

Penn  and  Mead's  case,  ii.  335. 

declared  by  statute,  ii.  354. 

Nathaniel  Thompson's  case,  ii.  337. 
Seven  Bishops'  case,  ii.  238. 

Tutchin's  case,  ii.  340. 
Clerk's  case,  ii.  341. 
Owen's  case,  ii.  342. 

Nutt's  case,  ii.  342, 
Shebbeare's  case,  ii.  342. 

Wood  fall's  case,  ii.  342. 

Shipley  (Dean  of  St.  Asaph's)  case,  ii.  344. 

argument  in  the  Dean  of  St.  Asaph's  case,  ii.  347. 
JUSTICE: 

administration  of,  publications  reflecting  on,  ii.  200,  20 1 . 


INDEX.  435 

JUSTICE  OF  THE  PEACE. 

words  of,  ii.  130.  131. 
JUSTICES: 

of  the  peace,  contempts  of,  ii.  195. 
JUSTIFICATION  : 

truth,  where,  L  229.     See  Truth. 

absolute,  publication  made  in  the  course  of  a   parliamentary  pro- 
ceeding, i.  239. 

absolute,  publication  in  course  of  judicial  proceeding,  i.  239, 

petition  to  parliament,  i.  243. 

proceeding  in  court  of  justice,  i.  246. 

rule  does  not  extend  to  any  extrajudicial  publication,  i.  254. 

proceeding  in  parliament,  i.  257. 

course  of  proof,  where  pleaded,  ii.  66. 

truth  of  alleged  slander,  ii.  100.     See  tit.  Truth. 

hearsay,  ii.  103.     See  tit.  Hearsay. 

K. 

KING: 

the  title  and  character  of,  how  guarded,  ii.   169. 
KING. 

statutes  concerning,  ii.  169. 

7  E.  1,  c.  34,  ii.  169. 

2R.  2,  st.  1,  c.5,  ii.  169. 

1  and  2  P.  and  M.  c.  3,  ii.  170. 

4  and  5  P.  and  M.  c.  9,  ii.  170. 

1  W.  and  M.  st.  2,  s.  9,  ii.  170. 

6.  Ann.  c.  7,  s.  7.  ii.  171. 

36.  Geo.  3,  c.  7,  ii.  171. 

contempts  of  king's  person,  ii.  172, 

denying  his  title  to  the  crown,  ii.  173. 
KING'S  PROCLAMATION: 

proof  by,  ii.  310. 
KNAVE : 

imputation  of  being,  i.  129. 
KNOWLEDGE  : 

defendant's  knowledge  of  falsity,  when  to  be  averred,  i.  436. 

L. 

LAMBERT  AND  PERRY  : 

case  of,  ii.  175,  185. 
LAUDATORES: 

practice  of  Roman  law,  as  to,  Prel.  Dis.  xv. 
LAW: 

municipal,  how  far  it  may   interfere  to  protect  character,   Prel. 
Dis.  xxi. 
LAWRENCE : 

conviction  of,  ii.  186. 
LAWS: 

of  all  civilized  nations,  restrain  abusive  and  injurious    communica- 
tion, Prel.  Dis.  vi. 
LEGISLATION: 

difficulty  of,  to  restrain  the  right  of  communication,  Prel.  Dis.  i. 


436  INDEX. 

LEGISLATION: 

importance  of  laws  on  this  subject,  ib.  ii. 

natural  progress. of,  in  restraint  of  communications  as  to  character, 
ib.  vi. 
LIBEL: 

objection  that  the  law  of,  is  too  vague,  considered,  Prel.  Dis.  i.  cxv. 

difficulty  of  establishing  precise  limits,  ib. 

general  condition  annexed  to  liberty,  ib.  cxviii. 

distinction  between  oral  and  written  publications,  with  a  view  to 
criminal  liability,  why  valuable,  ib.  cxxix. 

evil  cons-ecpience  from   subjecting  the   publisher  of  what  is  true  to 
penal  censures,  how  migrated,  Prel.  Dis  cxxx. 

meaning  of  the  term  according  to  the  law  of  England,  ib.  cxxxvii. 

on  individual,  whether  it  ought  to  be  visited  both  civilly  and  crimi- 
nally, ib.  clx. 

how  punishable  by  the  law  of  the  Twelve  Tables,  ib.  cxlix. 

actionable,  why,  i.  148. 

indictable  in  early  times,  i.  153. 

Adam  de  Ravensworfh's  case,  i.  153. 

practice  of  th2  Star   Chamber,  i.  154. 

Lord  Holt's  doctrine,  i.  157. 

Lord  Hardwicke's,  i.  157. 

case  of  Thornley  v.  Lord  Kerry,  i.  162. 

ancient  law  on  the  subject,  i.  166. 

extent  of  the  action,  i.  167. 

kinds  of  libel,  i.  167.  } 

in  writing,  i.  167. 
.  without  writing,  i.  199. 

by  pictures,  ib. 
general  rule,  i.  169. 

special  damage  unnecessary  to  be  proved,  i.  170. 

Sir  W.  Blackstone's  observations  on  this  head,  i.  170, 

caricatures,  i.  171. 

carrying  effigies,  i.  173. 

publication  of,  what  amounts  to,  ii.  16. 

proof  of  publication  of,  by  agent,  ii.  34. 

publication  by  means  of  post,  ii.  35. 

in  foreign  language,  how  proved,  ii.  50. 

defendant  entitled  to  have  the  whole  of  the  publication  read,  ii.  85. 

personal  defamation,  when  it  amounts  to,  ii.  210. 

grounds  of  the  offence,  ii.  210,  211. 

distinction  between  oral  and  written  defamation,  ii.  211. 

on  memory  of  person  deceased,  ii.  212. 

not  reflecting  on  character  of  any  person  in  particular,  ii.  214. 

possession  of,  whether  criminal,  ii.  226. 

writing  of,  whether  indictable  without  publication,  ii.  229. 

publication  of,  what  constitutes,  ii.  232. 

writing  of,  whether  criminal,  ii.  234. 

Lord  Holt's  opinion,  ii.  234. 

Beare's  case,  ii.  234. 

Lamb's  case,  ii.  235. 

John  de  Northampton's  case,  ii.  235. 

express,  where  necessary  to  be  proved,  i.  301. 


INDEX.  437 

LIBEL: 

Knell's  case  ii.  237. 

defamatory,  grounds  of  criminality,  ii.  250. 

definition  of,  ii.  267. 

sense  and  meaning  of,  ii.  320. 

usually  a  question  for  the  jury,  it  620. 

the  whole  to  be  read  in  criminal  as  well  as  civil  proceedings,  ii.  320. 

question  of  libel  or  no  libel  a  question  of  law,  where   the   sense 
is  ascertained,  ii.  322. 
LIBEL  BILL: 

practice,  which  gave  rise  to,  ii.  332. 
LIBELLUS  FAMOSUS: 

constitution  in  the  Theodosian  code,  as  to,  Prel.  Dis.  xxxix. 
LIBELS: 

Selden's  observations  on,  Prel.  Dis.  ci. 
LIBERTY: 

consequence  of  abuse  of,  Prel.  Dis.  xcix. 
LIBERTY  OF  THE  PRESS: 

advantageous,  when,  Prel.  Dis.  ci. 

when  the  contrary,  ib.  cii. 

under  a  rigid  democracy,  ib.  ciii. 

under  an  arbitrary  government,  ib.  civ. 

injurious  consequences  of  abusing  the,  ib.  cxii. 
LICENSER: 

public  expediency  of,  Prel.  Dis.  xcv. 

injurious  consequences  from  appointing,  ib.  cviii. 
LIMITATIONS: 

stat.  of  21  J.  1,  c.  16,  s.  3,  i.  473. 

must  be  pleaded,  i.  474. 
LONDON: 

custom  of  carting,  ii.  123. 
LOSS: 

to  the  party  defamed,  the  ground  of  action  by  the  law  of  Eng- 
land for  damages,  Prel.  Dis.  lxviii. 

secus,  according  to  the  law  of  Scotland,  ib.  lxviii. 

M. 
MAGISTRATE  : 

evidence  of  being,  ii.  2.   - 
MALEDICTUM: 

of  the  Roman  law,  what,  Prel.  Dis.  lxxi. 

what  amounted  to,  ib.  lxxii. 

to  say  that  a  man  was  bald,  ib. 
MALICE: 

intention  considered,  independently  of  occasion  and  circumstan- 
ces, how  far  material,  i.  210. 

malice  in  law,  what,  i.  213. 

negligence  amounts  to,  i.  218. 

actual  malice,  what,  i.  227. 

intention,  when  immaterial,  i  229. 

express,  when  necessary  to  the  action,  i.  215. 

malice  in  fact,  i.  292. 

when  essential,  i.  292. 

where  character  of  servant  is  given,  i.  293. 

56" 


438  INDEX. 

MALICE:  . 

specific,  malicious  intent,  when  to  be  averred,  1.  433. 
averment  of  defendants,  i.  538. 
proof  of,  ii.  52. 

inference  of  law,  when,  ii.  52. 
actual  proof  of  it,  53. 

other  words  or  libels,  when  admissible  to  prove,  ii.  53. 
inadmissible,  when  no  question  as  to  the  animus,  ii.  54. 
evidence  of,  in  an  action  for  malicious  prosecution,  ii.  55. 
no  distinction  in  this  respectbetween  words  actionable  or  not.ii.  56. 
words  admissible  to  prove  spoken  after  those  laid  in  the  declara- 
tion, ii.  56. 
sale  of  other  papers,  ii.  57, 
proof  of,  when  unnecessary,  ii.  61. 
not  a  question  for  the  jury  where  the  communication  exceeds  the 

limits  supplied  by  the  occasion,  ii.  86. 
in  criminal  cases,  what  sufficient,  ii.  243. 
Harvey's  case,  ii.  243. 
Burdett's  case,  ii.  244. 
bona  fide  intention,  where  a  defence  in  case  of  prosecution  for 

libel,  ii.  265. 
actual,  where  essential  to  criminal  publication,  ii.  256. 
necessity  of,  to  constitute  an  indictable  publication,  ii.  240. 
when  a  necessary  inference  from  the  publication,  ii.  322. 
MALICIOUS  PROSECUTION: 
declaration  for,  i.  445. 

must  allege  a  prosecution  instituted  and  determined,  i.  445. 
proofs  in  action  for,  ii.  67. 
"  prosecution  by  defendant,  ii.  67. 
how  proved,  ii.  67. 

proof  of  order  of  court  unnecessary,  ii.  67. 
acquittal  of  plaintiff,  ii.  68. 
identity  of  plaintiff,  ii.  69, 
variance  from  charge,  ii.  70. 
information  before  magistrate,  ii.  70. 
want  of  probable  cause,  ii.  71. 
where  question  of  law,  ii.  73. 
probable  cause  as  to  part  only,  ii.  74. 
malice,  a  question  for  the  jury,  when,  ii.  74. 
proof  of,  necessary,  ii.  75. 

abandonment  of  prosecution  not  sufficient,  ii.  77. 
against  magistrate  for  malicious  conviction,  ii.  77. 
malice,  how  proved,  ii.  77,  78. 
evidence  by  defendant, 
probable  cause,  ii.  79. 
acting  on  opinion  of  counsel,  ii.  79. 
doubt  manifested  by  jury,  ii.  79. 
proof  of  probable- cause,  ii.  79,  80. 

character  of  plaintiff,  when  admissible  in  evidence,  n.  81. 
damage  sustained,  ii.  81. 

proof  of  costs  expended,  ii.  82. 
MARRIAGE,  LOSS  OF: 

when  admissible  in  evidence,  ii.  62. 


INDEX.  439 

MASTER  : 

proof  of  action  against,  by  servant,  ii.  18. 

the  giving  character  of  servant,  where  a  defence,  i.  295. 
MATT  ILEUS: 

treatise  by  de  Criminibns,  Prel.  Dis.  xxxvi. 
MEDISANT: 

case  of,  in  France,  ib.  lix. 
MEANING  OF  LIBEL: 

usually  a  question  for  the  jury,  where  the  terms  are  ambiguous, 
ii.  320. 

evidence,  as  to,  ii.  321. 
MERCHANT: 

words  of,  i.  127. 

words  imputing  insol/ency,  i.  138. 
MERCURIUS  POLITICUS: 

publication  of,  ii.  10-4. 
MILLINER: 

words  of  a,  i.  140. 
MITIGATION: 

evidence  in,  ii.  87,  88,  i.  233. 

bad  character  of  plaintiff,  ii.  88,  Sec. 

general  evidence  admissible  to  impeach  plaintiff's  character,  ii. 
88,  &c. 

evidence  of  particular  facts  inadmissible,  ii.  97,  98. 

where  source  of  libel  referred  to,  proof  of  such  information  re- 
ceived as  evidence  in  mitigation,  ii.  98,  99. 

counter  libels,  when  admissible,  ii.  100. 
MITIOR  SENSUS: 

doctrine  of,  i.  95.     27  to  GO. 
MONTESQUIEU: 

his  theory,  as  to  aristocratical  governments,  Prel.  Dis.  cvi. 
MORALITY: 

publication  against,  ii.  155. 

general  rule,  ii.  155. 

Sir  C.  Sedley's  case,  ii.  155. 

stat.  3,  G.  4,  c.  40,  s.  3,  ii.  159. 

indecent  exposure  or  exhibition,  ii,  159. 
MORE  : 

his  Utopia,  Prel.  Dis.  xciii. 
MOSAIC  LAW: 

provisions  of,  Frel.  Dis.  x. 

specific  punishment,  by,  ib.  xii. 
MURDERER: 

action  for  imputation  of  being,  i.  87. 

N. 
NEGLIGENCE: 

in  doing  an  injurious  act  sufficient  to  render   a  party  answerable 
for  the  consequences,  ii.  242. 
NERAT1US  : 

abuse  of  the  law  by,  Prel.  Dis.  xxiv. 
NEWS,  FALSE: 
telling  of,  ii.  1G9. 


440  INDEX. 

NEWSPAPER: 

liability  of  proprietor  of,  ii.  33. 

proof  of  ownership,  ii.  43. 

stat.  38,  G.  3,  c.  78,  ii.  43 
NEW  TRIAL: 

when  granted,  ii.  105. 

after  verdict  for  plaintiff,  ii,  105, 

for  excessive  damages,  ii.  105. 
NUTT,  RICHARD: 

conviction  of,  ii.  164. 

O. 

OCCASION: 

no  defence  where  the  party  is  guilty  of  an   excess,  Prel.  Dis. 
lxxxvii. 

of  publishing  when  an  absolute  defence  on  a  criminal  charge,  ib. 
cxxxix. 

when  it  furnishes  a  complete  defence  independently  of  intention, 
ib.  cxl. 

when  a   qualified  defence,  where  the  intention  is  bona  fide,  ib. 
cxli. 
OCCASION  AND  CIRCUMSTANCES: 

when  they  ought  to  supply  a  defence  independently  of  question 
of  intention,  Prel.  Dis.  lxxix. 
OCCASION  OF  PUBLICATION: 

where  it  affords  an  absolute  defence  in  a  criminal  case,  ii.  244. 

publication  made  in  course  of  parliamentary  proceeding,  ii.  245. 

judicial  proceeding,  ii.  245. 

■  petition  to  the  House  of  Lords,  ii.  246. 

privilege  does  not  extend  beyond  the  occasion,  ii.  246. 
OFFICE: 

words  affecting  persons  in,  i.  117. 

nature  of  the  office,  i.  117,  118. 

ground  of  the  action,  i.  1 18. 

distinction  between  words  imputing  corruption  and  words  im- 
puting incompetency,  i.  119. 

words  of  time  past,  i.  123. 

extent  of  the  action,  i.  124. 

extends  to  all  offices  of  trust  or  profit,  i.  124. 

not  to  member  of  parliament,  i.  125. 

P. 

PAINE,  THOMAS  : 

trial  of,  ii.  164. 
PALINODE : 

pronunciation  of,  Prel.  Dis.  xxiii. 
PAMPHLETS : 

evidence  as  to  publication  of,  ii.  313. 
PARDON : 

effect  of,  i.  238. 
PARLIAMENT: 

reflections  on  proceedings  of,  ii.  202. 

prosecutions  for,  ii.  203. 

Maynard's  case,  ii.  203. 


INDEX.  441 

PARLIAMENT : 

Owen's  case,  ii.  203. 
Stockdale,  prosecution  of,  ii.  204. 
Burdett,  Bart,  case  of,  ii.  200. 
petition  to,  not  libellous,  ii   243. 
PARLIAM  i:  NT  \  B  V  PROCEEDING : 

publication  in  course  of,  not  actionable,  i.  239. 
PARLIAMENTARY  REPORTS  : 

whether  libellous,  ii.  259. 
PARTIES: 

to  a  civil  action,  i.  347.' 
where  several  may  join,  i.  347. 
husband  and  wife,  i.  348. 
wife  must  not  join  when,  i.  348. 
must  be  joined,  when,  i.  349. 
joinder  of  defendants,  i.  354. 
PAULUS: 

celebrated  response  of,  Prel.  Dis.  xxxv. 
PAWNBROKER: 

words  of,  i.  140. 
PEACE  OFFICER: 

evidence  of  being,  ii.  2. 
PECCATUM: 

use  of  the  term  in  civil  law,  Prel.  Dis.  xxxvi. 
PENAL  RESTRAINT: 

limits  of,  Prel.  Dis.  cxiii. 
PERRY : 

case  of,  ii.  175. 
PETITION: 

does  not  amount  to  a  libel,  when,  i.  315. 
PHYSICIAN: 

evidence  of  being,  ii.  3. 
words  of,  i.  126,  136. 
PICKPOCKET: 

imputation  of  being,  actionable,  i,  86, 
PICTURES: 

defamation  by,  distinction  by  the  civil  law,  Prel.  Dis.  lxx. 
PLEA: 

in  what  cases  the  defence  may  be  pleaded,  i.  459. 

what  must  be  specially  pleaded,  i.  465. 

of  speaking  the  words  in  general  not  material,  i.  443. 

of  the  general  issue,  what  it  puts  in  issue,  i.  453. 

justification  by  truth,  i.  466. 

whether  justification  as  a  report  of  judicial  proceeding  must  be 

pleaded,  i.  468. 
special  justification,  how  pleaded,  i.  474. 
must  confess,  i.  475. 
justification  by  truth,  i.  476. 
certainty  what  degree  of,  requisite,  i,  476. 
with  reference  to  the  words,  i.  447, 

must  be  particular,  though  the  words  be  general,  i.  478. 
must  correspond  with  the  imputation,  i.  4S0. 
sufficient,  if  the   substance  be  justified,  i.  483. 


442  INDEX. 

PLEA: 

of  justification,  that  the  alleged  libel  is  a  correct  report  of  a  judi- 
cial proceeding,  i.  485. 

publication  in  course  of  parliamentary  proceeding,  i.  487. 

in  course  of  judicial  proceeding,  i.  487. 

where  part  consists  of  a  report,  and  the  rest  of  comment,  i.  489. 

joinder  of  pleas,  i.  490. 

to  an  indictment  or  information,  ii.  307. 
POLICY: 

publications  against  sound  policy,  ii.  216. 

reflections  on  ambassadors,  ii.  216. 

foreign  potentates,  ii.  217,  218. 

false  prophecy,  ii.  219. 

stat.  35  H.  8,  c,  14. 

5  Eliz.  c.  15. 
POSESSSION  OF  LIBEL: 

whether  criminal,  ii.  226. 
POST. 

libel,  sent  by,  ii.  35. 
POST  MARK: 

evidence  of  publication,  where,  ii.  38,  39. 
PRAEMUNIRE : 

what  amounts  to,  ii.  173. 
PRESS: 

liberty  of,  in  what  it  consists,  Prel.  Dis.  c. 

the  liberty  of,  a  security  against  encroachments,  ib.  cvii. 

liberty  of,  consecpience  of  abusing  the,  ib.  cix. 

powerful  agency  of,  ib.  iv. — xcii. 
PRINTING,  ART  OF: 

effect  of  the  invention,  Prel.  Dis.  xcix. 
PROBABLE   CAUSE: 

where  in  principle  it  ought  to  constitute  a  defence,  independent- 
ly of  the  question  of  intention,  Prel.  Dis.  lxxxii. 

in  cases  of  criminal  prosecutions,,  ib. 

where  a  defence,  i.  276. 

what  amounts  to,  i.  299. 

speech  by  advocate,  i.  285. 

slander  of  title,  i.  289. 
PROCESS: 

against  the  person,  ii.  292. 

commitment  previous  to  indictment,  ii.  292. 

Derby's  case,  ii.  292. 

Wilke's  case,  ii.  292. 

warrant  of  secretary  of  state,  ii.  292. 

by  magistrates,  ii.  294. 

Leach's  case,  ii.  295. 

general  warrants,  resolution  of  House  of  Commons,  as  to  ii.  295. 

provisions  of  stat.  43  G.  3,  c.  58,  s.  1,  ii.  296. 

general  warrants  for  seizure  of  papers  illegal,  ii.  298,  299. 

Lord  Camden's  judgment,  ii.  299. 

civil,  i.  341. 

bail,  i.  341. 

venue,  i.  341. 


INDEX.  443 

PROFESSION: 

words  of  plaintiff  in,  i.  126. 

to  what  the  action  extends,  i.  126. 

must  apply  to  one  practising  at  the  time,  i.  123. 
PROHIBITION: 

ground  of  the  writ,  ii.  117. 

stat.  13  E.  1,  c.  4.  ii.  117. 

suit,  when  maintainable  in  the  Ecclesiastical  Court,  ii.  118,  119. 

spiritual  courts   have   no  concurrent  jurisdiction  with  courts   of 
common  law,  ii.  121. 

in  case  of  words  of  incontinency,  ii.  122. 

affidavit,  where  necessary,  ii.  124, 

provisions  of  stat.  1  Ed.  3.  H.  2,  c.  11,  ii.  125. 

stat,  27  Gr.  3,  c.  44,  ii.  126. 

time  of  moving  for,  ii.  126. 

to  Earl  Marshal's  court,  ii.  127. 
PROPHECIES: 

false,  stat.  against,  ii.  219. 

stat.  35  H.  8,  c.  14,  ii.  219. 

5  Eliz.  c.  15,  ii.  219. 
PROSECUTOR: 

proof  of  heing  in  action  for  malicious  prosecution,  ii.  69. 

see  tit  Malicious  Prosecution. 
PROVISIONS: 

attempt  to  raise  the  price  of,  by  false  rumors,  ii.  220,  221. 
PUBLICATION: 

essential  to  the  right  to  damages,  Prel.  Dis.  Ixix. 

aggravation  may  arise  from  the  mode  of  communication,  ib. 

what  sufficient  in  criminal  case,  ib.  cxxxiii. 

whether  act  anterior  to  publication  ought  to  be  deemed  penal,  ib. 
cxxxiv. 

actual,  whether  necessary,  ii.  41. 

presumptive  evidence  of,  ib. 

of  libel,  what  amounts  to,  ii.  28. 

by  an  agent,  ii.  28,  31. 

servant,  ii.  28,  33. 

by  bookseller,  ii,  30. 

editor  of  newspaper,  ii.  33. 

evidence  to  rebut,  ii.  33. 

of  libel   to  individual  reflected  on,   sufficient  in  case  of  indict- 
ment, ii.  225. 

whether  act  short  of  publication  is  illegal,  ii.  226. 

different  modes  of  publication,  according  to  Lord  Coke,  ib. 

doctrine  of  civil  law,  ib. 

practice  of  the  Star  Chamber,  ii.  228. 

Beare's  case,  ii.  229. 

Lord  Camden's  remarks,  ii.  229. 

of  libel,  what  amounts  to,  ii.  231. 
of  libel  in  foreign  language,  ii.  50. 
evidence  of,  in  case  of  indictment,  ii.  312. 
provisions  of  stat.  60  G.  3,  and  1  G.  4,  c.  9,  ii.  313. 
proof  of,  ii.  12,  13,  14. 


444  INDEX. 

PUBLICATION: 

direct,  ii.  14,  15. 
by  hand-writing,  ii.  15. 
what  amounts  to,  ii.  16. 
provisions  of  stat.  38  G.  3,  c.  78,  ii.  43. 
delivery  to  officer  of  Stamp  Office,  ii.  49. 
PUBLIC   SECURITY: 

how  provided  for,  Prel.  Dis,  xciii. 
by  previous  restraints,  ib. 

R. 

RAYNER: 

case  of,  ii,  203. 
REMEDIAL  ACTION: 

compensation  ought  to  be  apportioned  to  the   injury,  Prel.  Dis. 
xxiv. 

where  applicable,  ib.  xxv. 

in  all  cases  of  loss  or  detriment,  ib. 

though  the  benefit  lost  could  not  legally  have  been  claimed,  ib. 

limits  of,  ib.  xxiv. 

quality  and  consequence  of  the  defamatory  matter,  ib. 

ought  not  to  depend  on  actual  loss,  ib.  xxvi. 

ought  not  to  be  extended  to  general  contumely,  ib.  xxviii. 

reason  why  desirable  to  extend  the  limits  of,  ib.  xxix. 
REPETITION  : 

declaration  as  to  original   matter  not  a  defence  in  criminal  pro- 
ceeding, ii.  249. 

is  evidence,  to  rebut  presumption  of  malice,  ii.  249. 

of  slander  heard  from  another,  whether  a  defence,  ii.  248. 

under  stat.  of  Scan.  Mag.  ii.  248. 

of  slander,  when  actionable,  i.  329. 

Lord  Northampton's  case,  i.  329. 

the  repeater  must  at  the  time  disclose  the  author's  name,  i.  332. 

of  slander, 

repeater  must  give  the  very  words  used,  i.  334. 
liable  when  he  publishes  against  his  own  knowledge,  i.  336. 
general  principle,  i.  339. 
REPUTATION : 

love  of,  a  great  principle  of  human  conduct,  Prel.  Dis.  xlix. 
RESTRAINTS: 

prohibitory  kinds  of,  Prel.  Dis.  xxii. 

preventive,  ib. 

penal,  ib.  xxiii. 

palinode,  ib. 

remedial,  ib. 

for  the  benefit  of  the  public,  ib.  lxxxviii. 

such  restraints  necessary,  ib.  lxxxix. 

to  prevent  dissolution  of  the  bonds  of  society,  ib. 

communications,  when  treasonable,  ib.  xc. 

incitements  to  break  the  law,  ib. 

communications  tending  to  extinguish  the  sense  of  moral  or  re- 
ligious obligation,  ib.  xci. 

the  prevention  of  such,  properly  within  the  scope  of  municipal 
laws,  ib. 


INDEX.  445 

RESTRAINTS: 

previous,  by  censorship,  il>.  xciii. 

penal,  limits  of,  ib. 

must  be  limited  by  tendency,  ib. 

of  the  press,  evil  resulting  from,  ib.  xcviii. 

weakening  of  mutual  confidence  between  the  government   and 
the  people,  ib.  c. 
ROGUE : 

words  charging  the  being  one,  i.  97. 
ROMAN  LAW  : 

wide  limits  of  the  action   for  contumelious  and  iusulting  words. 
Prel.  Dis.  xxxi.  xxxii. 

any  defamation  actionable,  ib. 

singular  mode  of  defamation  practised  at  Rome,  ib. 

action  maintainable  in  respect  of  insult  to  other   members  of  the 
family,  ib. 

by  the  heir,  in  respect  of  insult  to  the  memory  of  the  deceased,  ib. 

gave  the  action  in  respect  of  insult  and  contumely,  ib.  xxix.  xxxi. 

the  law  of  England  does  not,  ib. 
RUMORS,  FALSE  : 

to  raise  price  of  hops,  ii.  221. 

an  offence  at  common  law,  ii.  220. 

to  raise  price  of  provisions,  ii.  120. 

diminish  price  of  staple  commodity,  ii.  221. 

S. 
SCANDALUM  MAGNATUM : 

provisions  of,  Prel.  Dis.  xli. 

truth  of  charge,  a  defence  against  proceeding  for,  ii.  255. 

statutes  of,  i.  175. 

3  E.  1,  c.  24,  i.  175. 

2  R.  2,  st.  1,  c.  5,  ib. 

12  R.  2,  c.  11.  ib. 

whether  an  action  lay  at  common  law,  i.  178. 

who  entitled  to  maintain  the  action,  i.  179, 

none  brought  for  a  century  after  the  statutes,  i.  179. 

for  what  words,  i.  181. 

words  must  be  false,  i.  T85. 

general  rule,  i.  188. 
SCHOOLMASTER: 

words  of,  i.  126. 
SCOTLAND: 

law  of,  in  respect  of  defamation,  indefinite,  Prel.  Dis.  xxxiii. 

instances,  ib. 

law  of,  as  to  the  intention  of  the  defendant,  ib.  lxxxvi. 

see  Intentiox. 

law  of,  as  to  the  Veritas  convicii,  ib.  lxiv. 

no  general  rule  yet  established,  ib.  lxv. 

law  of,  allows  four  different  objects  to  be  attained  in  the  same 
proceeding,  ib.  lxxxviii. 

statutes  of,  as  to  slander,  ib.  xlii. 

law  of,  how  differing  from  the  civil,  as  to  defamation,  ib.  xliii. 

rule  of,  as  to  the  Veritas  convicii,  ib. 
Vol.  II.  57 


446  INDEX. 

SENSE  : 

in  which  words  or  libels  to  be  understood,  ii.  107. 

after  verdict,  court  will  not,  listen  to  trivial  exceptions,  ii,  108. 

will  construe  doubtful  words  in  a  sense  which  will  support  the 
verdict,  ii.  108. 

to  be  collected  from  the  whole  of  the  words  or  libel,  ii.  85. 

by  evidence  of  document  referred  to,  ii.  86. 

of  words,  proof  of,  on  whom  incumbent,  ii.  84,  85. 
SERVANT: 

proof  in  action  by,  against  master,  ii.  58. 

words  of.'i.  129. 

action  by,  giving  character,  where  defence,  i.  293. 
SEVEN  BISHOPS: 

case  of,  ii.  38,  39. 

proofs  against,  ii.  20. 
SREBBEARE: 

trial  of,  ii.  104. 
SHEEPSTEALER  : 

action  for  imputation  of  being,  i.  86. 
SCIMMINGTON: 

riding  of,  i.  173. 
SLANDER : 

repetition  of,  when  actionable,   i.  329. 

doctrine  laid  down  in  Ld.  Northampton's  case,  i.  330. 
SLANDER. OF  TITLE: 

when  actionable,  i.  191. 

special  damage,  essential,  ib. 
SOCIETY: 

state  of,  one  of  mutual  confidence,  Prel.  Dis.  xlviii. 

knowledge  of  character  therefore  necessary,  ib.  xlix. 
SOCIETY,  CIVIL: 

a  system  of  mutual  trust,  Prel.  Dis.  xvi. 
SOLICITATION: 

to  commit  a  breach  of  the  peace,  ii.  209. 
SOLON : 

law  of,  Prel.  Dis.  xxiv.  xxxiv. 
SOLVENCY: 

presumption  of,  in  case  of  purchase   on  credit,  a   tacit  condition, 
Prel.  Dis.  lvii. 
SPECIAL  CHARACTER: 

mode  of  averring,  see  declaration,  i.  408. 

words  of  person  in.  i.  117. 

churchwarden,  i.  124. 

escheator,  ib. 

master  of  mint,  i.  125. 

clerk  to  public  company,  ib. 

steward  of  court,  ib. 

member  of  parliament,  ib. 

attorney,  i.  126. 

barrister,  ib. 

physician,  ib. 

clergyman,  ib. 

schoolmaster,  ib. 


INDEX.  447 

SPECIAL   CHARACTER: 
merchant,  i.  127. 
tradesman,  ib. 
cornfactor,  ib. 
servant,  i.  129. 
jobber  in  public  funds,  ib. 
certainty  of  the  words,  i.  130. 
imputation  of  want  of  integrity,  ib. 
of  a  judge,  ib. 
justice  of  the  peace,  ib.  131. 
bishops,  i.  131. 

attorney  or  clerk  of  K.  B.  i.  132. 
attorney,  ib. 
tradesman,  i.  134. 
carpenter,  i.  135. 
imputation  of  want  of  ability,  ib. 
of  a  barrister,  i.  136. 
physician,  ib. 
apothecary,  ib. 
midwife,  i.  137. 
watchmaker,  ib. 

imputation  of  insolvency,  i.  138. 
on  merchants,  i.  138. 
traders,  ib. 

words  actionable,  though  they  do  not  impute  bankruptcy,  ib. 
words  actionable,  which  impute  want  of  credit,  i.  139. 
of  a  tailor,  ib. 
dyer,  ib. 
trader,  ib. 
stock-broker,  ib. 
pawnbroker,  ib. 
milliner,  i.  140. 
upholsterer,  ib. 

carpenter,  ib. 

husbandman,  i.  141. 

trader,  ib. 

bookseller,  ib. 
SPECIAL  DAMAGE: 

what  amounts  to  actionable  damage,  i.  190. 

preventing  of  plaintiff  from  selling  of  lands,  i.  191. 

preventing  plaintiff  from  acquiring  a  benefit,  i.  194. 

from  succeeding  to  a  living,  i.  94,  195. 

from  getting  a  place,  i.  195. 

loss  of  marriage,  ib. 

what  constitutes,  i.  203. 

mere  apprehension  of  ill  consequence,  ib. 

how  special  damage  must  be  connected  with  the  slander,  ib. 

must  be  the  natural  consequence  of  the  words,  i.  204.    - 

where  too  remote,  i.  207. 
SPIRITUAL  COURT: 

see  Prohibition,  ii.  116. 
STAMP: 

unstamped  copy  of  newspaper,  cvideucc,  ii.  49. 


448  INDEX. 

STAR  CHAMBER  : 

Delomle's  observations  on,  Prel.  Dis.  xciii. 
STEALING: 

imputation  of,  i.  91,  92,  93. 

actionable  quality  of  term,  depends  on  subject  matter  to  which  it  is  ap- 
plied, 1.  93. 
STOCK  BROKER  : 

words  of,  i.  139. 
STOCKDALE : 

prosecution  of,  ii.  204. 
SURETIES  :• 

of  the  peace,  when  requirable,  ii.  267. 

for  the  good  behavior,  ii.  269. 

when  requirable,  ib. 

John  de  Northampton's  case,  ib. 

for  contempts  of  judges  or  magistrates,  ib. 

of  magistrates,  ib. 

to  what  contempts  the  rule  extends,  ib. 

whether  they  must  be  spoken  in  the  presence  of  magistrate,  ii:  270. 

in  case  of  unmannerly  words  in  general,  ib: 

recognizance  to  keep  the  peace,  how  forfeited,  ii;  271, 

may  be  required  in  case  of  blasphemous  or  seditious  libels,  ib. 

st.  60  G.  8,  and  1  G.  4,  c,  16.  ib. 

T. 

TAILOR  : 

words  of,  i.  130. 
TENDENCY: 

illegal,  sufficient  to  constitute  a  libel,  Prel.  Dis.  cxiv. 
THIEF: 

action  for  imputation  of  being,  i.  86. 

charge  of  being,  i.  92,  99. 

evidence  of  not  being  used  in  felonious  sense,  ii.  85. 
TIBERIUS: 

his  pardoning  a  Roman  knight  who  had  libelled  him,  Prel.  Dis. 
cv. 
TIMBER: 

imputation  of  stealing,  i.  91. 
TITLE  : 

slander  of,  malice  essential  to,  when,   i.  317. 

slander  of,  i.  287. 

words  impeaching,  not  actionable  without  special  damage,  i.  145. 
TITLE  TO  LAND: 

words  impeaching,  not  actionable  without  special  damage,  i.  146. 
TOPHAM : 

case  of,  ii.  213. 
TOULOUSE : 

parliament  of,  decision  by,  Prel.  Dis.  lix. 
TRADER: 

words  imputing  insolvency,  i.  138,  139. 
TRADESMAN: 

words  of ,  i.  127  . 


INDEX.  141 

TRAITOR  : 

action  for  imputation  of  being,  86. 
TREASON: 

mere  words  do  not  constitute  overt  act  of,  166,  167. 
same  as  to  words  written  or  printed,  ii.  169. 
TREATISE: 

general  object  of  this.  Prcl.  Dis.  v. 
TREBATIUS: 

dialogue  with  Horace,  Prel.  Dis.  xxxvii. 
TRIAL : 

incidents  to,  ii.  327. 

province  of  jury  on  criminal  trials,  ii.  332. 
effect  of  the  libel  act ,  32  G.  3,  c.  60,  ib. 
occasion  of  passing  that  act,  ib. 
TRUTH : 

whether  the  publication  of  the  truth  ought  to  be  punishable,  Prel. 

Dis.  cxxii. 
may  be  made  an  instrument  of  offence,  ib. 
ordinary  objection  that  truth  cannot  be  a  libel,  ib. 
communication  of,  may  often  be  highly  immoral,  ib.  cxxiii. 
may  be  used  as  an  indirect  solicitation  to  break  the  peace,  ib. 
consideration  of  the  question  on  grounds  of  public  policy,  ib. 
deliberate  charges  ought  not   to   be   made    but   in   the   ordinary 

course  of  law,  ib.  exxv. 
to  admit  the  truth  as  a  defence  in  all  cases,  would  be    to    extend 

the  criminal  code  indefinitely,  ib. 
would  be  attended  with  injustice  to  the  party  defamed,  ib.  exxvii. 
whether  it  ought  to  be  admitted  in  mitigation  of    provocation  for 

libel,  ib.  exxxi. 
whether  it  ought  to  be   admitted   as   evidence    of    the  intention 

where  the  question  turns  on  malice  in  part,  ib.  cxliii. 
justification  of,  must  be  specially  pleaded,  i.  466. 
notice  of  proof  where  justification  is  pleaded,  ii.  100. 
where  the  plea  is  general,  ii.  101. 
must  be  precise,  ib. 

circumstances  of  exaggeration,  when  necessary  to  be  proved,  ib. 
of  words  given  in  evidence  to  prove  malice  admissible,  ii.  102. 
acquittal  of  plaintiff,  does  not  exclude  evidence  of  his  guilt,  ib. 
evidence  of  good  character  admissible,  to  what  presumption  of 

guilt,  ib. 
amounts  to  an    absolute  justification  independent   of  intention, 

i.  230,  &c. 
in  case  of  Scan.  Mag.  i.  234. 

may  be  proved  notwithstanding  an  acquittal,  i.  235. 
must  be  pleaded  in  justification,  i.  236. 
suspicion  insufficient,  i.  237. 

an  insufficient  bar  after  pardon,  unless  after  conviction,  ib., 
loss  of  advantage  which  could  only  be  acquired  by  concealment  of 

truth,  no  ground  of  action,  Frel.  Dis.  lv. 
of  a  defamatory  charge,  how  far  a  defence  by  the  Roman  law,  ib. 

XXXV. 

proof  of,  when  admissible  under  plea  of  general  issue,  ii.  103. 
in  action  for  malicious  prosecution,  ib. 


450  INDEX. 

TRUTH: 

case  for  slander  of  title,  ii.  104. 

of  libel,  no  defence  in  case  of  indictment,  ii.  251. 

reasons  for  the  distinction,  252,  &c. 

same  in  case  of  Scan.  Mag.  ii.  255. 

evidence  of,  not  admissible  under  general  issue,  ii.  87. 

of  words  given  in  evidence  to  prove  malice  admissible,  ii.  57,  58. 
TUTCHIN: 

conviction  of,  ii.  163,  187, 
TWELVE  TABLES: 

law  of,  Prel.  Dis.  xxiv. 

the  position  that  they  punished  satirists  capitally,  observed  upon, 
ib.  cxlix. 


VARIANCE  : 

See  Declaration,  i.  361. 
VENUE : 

i.  341. 
VERITAS  CONVICII: 

doctrine  of  the  civil  law  as  to,  Prel  Dis.  xxxv. 

of  the  law  of  England,  ib. 

doubts  of  Roman  jurists  as  to  the  plea  of,  ib.  xli. 

of  Scotch  jurists,  ib. 

Mr  Borthwicke's  observations  on  the  subject,  ib.  xlii. 

law  of  Scotland  as  to,  ib.  lvii. 

rule  of  Scotch  law  as  to,  ib.  xlii. 
"   of  the  law  of  England,  ib.  xliv. 

general  principle  on  which  falsity  is  essential,  ib. 
VICTORINUS: 

rescript  to  inquiry  by,  ib.  xxxvi. 

W. 

WARRANTS: 

general,  illegality  of,  ii.  295,  298,  299. 

Lord  Coke's  case,  ii.  298. 

general,  for  seizure  of  papers,  illegality  of,  ib.  298,  299. 

See  Process. 
WHOREDOM: 

words  of,  ii.  124. 
WIFE: 

joinder  of,  i.  348. 
WILKES,  JOHN: 

conviction  of,  ii.  174. 
WITCHCRAFT: 

words  of,  i.  86. 
WITNESS: 

evidence  by,  not  actionable,  i.  242. 

member  of  parliament ,  to  what  examinable,  ii.  92. 

barrister  not  compellable  to  give  evidence,  when.  ii.  83. 

when  he  may  refer  to  paper  to  refresh  his  memory,  ii.   63. 

not  bound  to  criminate  himself,  ii.  50. 


INDEX.  451 

WOMEN : 

imputations  on  general  reputation  not  actionable  without  special 
damage,  i.  198 
WORDS: 

have  constituted  acts  of  treason,  ii.  166. 

the  contrary  since  held,  ib.  160,  1G7. 

reason  for  this,  ii.  167. 

secus  where  words  are  coupled  with  an  act,  ii.  168. 

written  or  printed,  ii.  169. 

uttered  in  passion,  during  intoxication,  &c.  are  actionable  accord- 
ing to  the  law  of  England,  Prel.  Dis.  lxii. 
WRITING  OF  LIBEL: 

whether  indictable  without  subsequent  publication,  ii.  229. 

whether  in  itself  criminal,  ii.  230. 


THE    END. 


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